T 


•j.V 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


'.'aiitornia 
Withdrawn 


A   TREATISE 


LAW   OF    EYIDENCE. 


SIMON    GREENLEAF,  LL.D., 

EMKKITU8  PROFESSOR   OF   LAW   IN   HARVARD   UNIVERSITY. 


Quorsum  enim  sacrae  leges  inventae  et  sancitse  fnere,  nisi  ut  ex  ipsarum  iustitia 
unicuique  jus  suum  tribuatur  1  —  Muscardos  ex  Ulpian. 


VOLUME    II. 


TBKTH  EDITION,    CAREFULLY    REVISED,   WITH   LARGE   ADDITIONS, 


ISAAC  F.   REDFIELD,  LL.D 


BOSTON: 

LITTLE,    BROWN,    AND    COMPANY. 

MDCCCLXVIII, 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

by  James  Greenleaf, 

in  the  Clerk's  OfBce  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1863, 
by  James  Greenleaf, 
in  the  Clerk's  OflSce  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1867, 

by  Mrs.  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


ADVERTISEMENT  TO  THE  FIFTH  EDITION. 


Tffls  edition  was  prepared  for  the  press  by  the  lamented 
Author,  and  is  given  to  the  Profession  as  left  by  him  at 
his  death.  Whether  he  had  completed  its  preparation  is 
not  known,  but  the  additional  notes  were  left  in  the  fin- 
ished and  perfect  state  which  characterized  all  his  works, 
and  give  reason  to  believe  that  his  labors  were  done. 
The  additions  are  not  numerous,  but  they  possess  a  pe- 
culiar interest,  as  being  the  last  contributions  of  the  Au- 
thor to  that  science  which  his  labors  through  life  had 
done  so  much  to  illustrate. 

Boston,  January,  1854 


CONTENTS. 


PART   IV. 


Of  the  Evidence  requisite    in    certain    particular    Actions 
AND  Issues  at  Common  Law. 

Section 

1—17 
Preliminary  Observations 

Abatement ~ 

Accord  and  Satisfaction 28-33 

.  ,  34-39 

Account 

.  ,  1,  40-58 

Adultery 

,  ^  59-68  a 

Agoncy 

fiQ       kl 

Arbitration  and  Award oj     oi 

Assault  and  Battery 82-100 

.  .,  101-136  a 

Assumpsit 

1^7-149 
Attorneys ics/     i^j 

Bastardy 150-153 

Bills  of  Exchange 153  a -207 

Carriers 208-222« 

Case 223-232  6 

Covenant 233-24/ 

Custom  and  Usage 248-252 

Damages 253-278 

Death. 278a-278/. 

Debt 279-292 

Deed 293-300 

Duress ^01-302 

Ejectment 303-337 

Executors  and  Administrators 338 -3o2 

Heir 353-3^1 

T  n                                                                                     ...      362-368 
Infancy 

T  ■      •;                                    .                                        ....      369-374 
Insanity 


yi  CONTENTS. 

Section 

Insurance 375-409 

Libel  and  Slander 410-429 

Limitations 430-448 

JNLilicious  Prosecution 449-459 

Marriage >  460-464 

Nuisance 465-476 

Partnership 477-486 

Patents 487-515 

Payment       . 516-536 

Prescription ,  *     *     *     *  ^^^  ~  ^'^^ 

Real  Actions 547-559 

Replevin 560-570 

Seduction 571-579 

Sheriff 580-599 

Tender 600-611  a 

Trespass 612-635  a 

Trover 636-649 

Waste 650-656 

Way 657-665 

Wills         666-695 


INDEX    TO    CASES    CITED. 


A. 

Section 

Section 

Alden  v.  N.  Y.  Cent.  Rail. 

222 

Abbe  V.  Kood 

67,  141 

V.  Peai^on 

208,  219 

Abbey  ;;.  Lill 

193 

Alder  V.  Saville 

78 

Abbot  V.  Dexter 

'       71 

Alderman  v.  French 

275 

Abel  V.  Potts 

388 

Alderson  v.  Clay 

479 

483,  485 

AbercTombie  v.  Parkhurst 

562 

V.  Langdale 

523 

Abithol  V.  Bristow 

382,  384 

V.  Waistell 

88 

Acerro  v.  Petroni 

479 

Aldrich  v.  Albee 

610 

Aekerman  r.  Runyon 

367 

Alexander  v.  Bonnin 

627 

Ackland  r.  Pierce 

191 

V.  Brown 

602 

Ackworth  v.  Kempe            580, 

597,  621 

V.  McCauley 

584 

A' Court  V.  Cross 

442 

V.  McGinn 

25 

Acton  r.  Blundell 

467 

V.  Owen 

523 

Adam  r.  Kerr 

296 

V.  Southey 

645 

Adams  i;.  Balch 

585 

17.  Vane 

114 

V.  Chaplin 

677 

V.  "UTiipple 

435 

V.  Clark 

208,  637 

Alexandria  (Mayor,  &c. 

af)    I 

. 

V.  Drake 

518 

Patten 

529, 532 

V.  Emerson 

616 

Alfray  V.  Alfray 

462 

V.  Field 

674 

Allam  r.  Heber 

359 

I".  Freeman               98 

615,  627 

Allan  r.  Gomme 

659 

V.  Gardner 

26 

Allcock  V.  Ewen 

440 

I".  Otterback 

251 

AUcott  V.  Strong 

484,  533 

r.  Robinson 

141 

Alldav  V.  Great  Western  RaUwav 

Addington  v.  Clode 

545 

Co.' 

215 

V.  Wilson 

689 

Allegre  v.  Maryland  Ins. 

Co. 

251 

Addison  r.  Preston 

279 

Allen  r.  Blanchard 

486 

r.  Round 

644 

r.  Blunt 

268  a 

Addy  i\  Grix 

677 

V.  Carter 

615 

J2tna  Fire  Ins.  Co.  v.  Tyler 

405 

V.  Commercial  Ins. 

Co. 

392 

Aflalo  V.  Fourdrinier 

192 

V.  Cook 

128 

Ago-  V.  Davies 

363 

V.  Crary 

560 

Ahem  v.  Maguire 

404,  418 

V.  Edmonson 

194 

Aikin  v.  Buck 

614 

V.  Harris 

Jl 

Ainslie  v.  Wilson 

113,  118 

1-.  Harrison 

686 

Aitkenhead  r.  Blades 

628 

V.  Heam 

286 

Akerley  v.  Haines 

578 

V.  Hunt 

489 

Albro  V.  Agawam  Canal  Co. 

232  6 

r.  Hunter 

492 

r.  Jaquith 

232  6 

f.  Kemble 

153  a 

Alchorne  v.  Gomme 

565,  566 

V.  King 

520 

Alcock  V.  Hopkins 

520 

f.  Lyman 

279 

Alden  v.  Capen 

531 

I'.  McKeen 

121 

V.  Dewey 

492 

V.  Miles 

72 

r.  Murdock 

556 

V.  Afille 

443 

vm 


INDEX   TO    CASES   CITED. 


Allen  V.  Rostain 

V.  Shed 

r.  Watson 
Allento-svn  v.  Saeger 
Allis  V.  Billings 

V.  Moore 
Allison  V.  Rayner 
Allport  V.  Meek 
Alna  V.  Phimmer 
Alpass  V.  Watkins 
Alsager  v.  Close 
Alsept  V.  Eyles 
Alsleger  v.  Erb 
Alsop  V.  Commercial  Ins.  Co. 
Alston  V.  Mechanics'  Ins.  Co. 
Alton  V.  Gilmanton 


Section 
483 
597 
79,  80,  81 
121 
369 
430 
142 
165 
108 
124,  125 
642,  649 
599 
461 
381 
396 
141 

American  Ins.  Co.  v.  Dunham  390 

Amery  v.  Rogers  378 

Ames  V.  Mllward  78 

Amesbury  v.  Amesbury  111,  121 

Amies  v.  Stevens  219 

Amory  v.  Fairbanks  524 

V.  Fellows  691 

V.  Hamilton  66,  67 

Anderson  v.  Anderson  45 

V.  Brock  11  « 

V.  Buckton  273 

V.  Bullock  296 

V.  Commonwealth  48 

V.  Johnson  93 

V.  Pitcher  384 

V.  Robson  156 

V.  Sanderson  65 

V.  Watson  139 

V.  Weston  167 

Andrew  v.  Robinson  118 

Andrews  v.  Askey  253,  577,  579 

V.  Bartholomew  274 

V.  Boyd  190 

V.  Chadboume  161 

V.  Gallison  344,  345 

i;.  Hooper  556 

V.  Palmer  79 

V.  Shattuck  642 

V.  Vanduzer  425 

Angell  V.  McLellan  366 

Angier  v.  Taunton,  &c.  Co.        638,  649 

Angle  V.  Miss.  &c.  Railw.  209 

Angas  V.  Redford  78 

V.  Smythies  78 

Anichini  v.  Anichini  52 

Annis  v.  Gilmore  585 

Anonymous  147, 431 

Anstey  v.  Dowsing  691 

Anthony  v.  Gilbert  272 

V.  Harreya  627 

Antram  v.  Cha^e  71 


Appleby  v.  Brown 
V.  Clark 

Appleton  V.  Bancroft 
V.  FuUerton 

Arbouin  v.  Anderson 

Arbuckle  v.  Taylor 

V.  Thompson 
V.  Ward 


Section 
35 
115 
108 
657 
172 
453 
212 
539 

Arcangelo  v.  Thompson     193,  383,  388 

Archew  v.  Ward  26 

Arden  v.  Tucker  139 

Argall  V.  Bryant  433 

Argent  v.  Durant  625 

Armfield  v.  Tate  ,  367 

Armington  v.  Larabee  627 

Armory  v.  Delamirie  637 

Arms  V.  Ashley  118 

Ai-msby  v.  Farnham  478 

V.  Woodward  325 

Armstrong  v.  Christiana  186 

V.  Percy  254,  256,  262 

Armsworth  v.  S.  East.  Railw.  Co.      473 

Arnold  v.  Camp  523 

V.  Lyman  109 

V.  Richmond  Iron  Works      369 

V.  Sprague  161 

V.  Stevens  476,  557 

Arthur  v.  Dartch  126 

Arundell  v.  Tregono  45? 

Ash  V.  Marlow  454 

Ashley  v.  Ashley  537 

V.  Harrison  256,  420 

Ashmead  v.  Kellogg  640 

Ashmore,  In  re  676 

V.  Penn.  S.  T.  &  Trans. 

Co.  211,  215,  218 

Aspinal  v.  Wake  164 

Assay  v.  Hoover  *       671 

Astin  V.  Parkin  333 

Astley  V.  Astley  44,  52 

V.  Reynolds  121 

V.  Weldon  257,  258 

Aston  V.  Heaven  221 

Astor  V.  Hoyt  239 

V.  INIiller  239 

V.  Union  Ins.  Co.  377 

Atherton  v.  Tilton  482 

Atkins  V.  Barnwell  107,  114 

V.  Boardman  657,  659  a 

V.  Boylston,  &c.  Ins.  Co.         382 

V.  Sanger  690 

V.  Tredgold  344 

V.  Warrington  278  e 

Atkinson  v.  Clapp  11a 

V.  Denby  121 

V.  Hawdon  623 

V.  Laing  478 


INDEX  TO   CASES   CITED. 


IX 


Section 

Atlantic  Mut.  Fire  Ins.  Co.  v.  Fitz- 

patrick  162 

Aton  V.  Bolt  440 
Attorney-Gen.  v.  Federal  Street 

Meeting-house     430 

V.  Parnther  689,  690 

V.  Vigor  686 

Attwood  r.  Rattenbury  167 

Atwater  v.  Woolbridge  HI,  121 

Atwood  V.  Monger  452 

Aubert  v.  Walsh  HI 

Ai.sten  V.  Graham  689 

V.  WiUward  277 

Austin  V.  Debnam  453 

V.  Drew  405 

V.  Gage  361 

V.  Manchester,  &c.  R.  Co.      215 

V,  Rodman  112,  195 

V.  Sawyer  615 

V.  Taylor  252 

V.  Whitlock  296 

Avarillo  v.  Rogers  414 

Avery  v.  Pixley  674,  681 

V.  Ray              ^  89,  26  7 

Aveson  v.  Ld.  Kinnalrd  55 

Ayer  v.  Bartlett  640 

V.  Hawkins  531  a 

V.  Ilutchins  115,  199,  200 

Aylet  V.  Dodd  259 


B. 


Bailey  v.  Applegate 
V.  Bailey 
V.  Bussing 
V.  Damon 
V.  Massey 
V.  Porter 


Section 

544 

669,  672 

105,  108 

261  a 

614 

189 


Babcock  V.  Bryant  186 

V.  Hawkins  31 

V.  Montgomery  Ins.  Co. 

404,  405 

V.  Thompson  HI 

Back  V.  Stacey  471 

Backman  v.  Wright  533 

Backus  V.  Backus  ''^ 

V.  McCoy  241,  2G4 

V.  Shepherd  190 

Bacon  v.  Brown  533 

V.  Charlton  600 

V.  Crandon  79 

V.  Cropsey  599 

V.  Page  15 

V.  Towne        452,  453,  454,  455, 

457,458 

Badger  v.  Phinney  369,  561 

Badgley  v.  Heald  136  a 

Badfam  v.  Tucker  637 

Bagnall  v.  Underwood  412,  417 

Bagshaw  v.  Gaward  270 

Bagwell  V.  Babe  19 

V.  Elliot  672 


Bailiflfs  of  Tewksbury  v.  Bicknell 

544,  568 
Baillie  v.  Ld.  Inchiquin  441 

Bainbridge  v.  Pickering  366 

Baird  v.  Blaigrove  296 

V.  Cochran  207 

Bakeman  v.  Pooler  602 

Baker  v.  Arnold  207 

V.  Atlas  Bank  251 

V.  Baker  432 

V.  Briggs  204 

V.  Carey  104 

V.  Dening  674 

V.  Fales  561 

V.  Freeman  61 

V.  Garratt  599 

V.  Green  254,  584,  599 

V.  Howell  120 

V.  Stackpole  529,  532,  533 

V.  The  Hibernia  219 

V.  Wheeler  276 

Balch  V.  Onion  161 

Balcom  i'.  Richards  444 

Baldney  v.  Ritchie  25 

Baldwin  v.  Cole  642 

V.  Elphinstone  416 

V.  Western  R.  R  Corp.      254, 
269 
Bales  V.  Wingfield  599 

Ball  V.  Claflin  H  b 

V.  Taylor  296 

Ballard  v. 'Dyson  659 

Ballingalls  v.  Gloster  181 

Ballon  V.  Ballon  26 

V.  Farnum  267 

Balston  v.  Baxter  31 

V.  Bensted  475 

Baltimore  v.  Norman  649 

Baltimore  Turnpike  case  74 

Bamfield  v.  Massey  58,  577 

Bamtbrd  v.  Turnley  467 

Banbury  Peerage  case  152 

Banchor  v.  Cilley  481 

Bancroft  v.  Dumas  531,  533 

Bander  v.  Snyder  528 

Bangs  V.  Hall  440,  413 

Bank  of  Alexandria  v.  Swann  189 

ChiUicothe  v.  Dodge  123 

Columbia  v.  Lawrence         186 
V.  Patterson  62,  257 
Geneva  v.  Howlett  187 


INDEX   TO   CASES   CITED. 


Section 

Section 

Bank  of  Hartford  Co.  v.  "Waterman  433 

Barnstable  v.  Thacher 

618 

Ireland  v.  Archer 

161 

Barnum  v.  Vandusen 

635  a 

Kentucky  v.  Brooking         478 

Barnwall  v.  Cl;iurch 

401 

Middlebury  v.  Rutland        297 

Baron  v.  Abeel 

336, 337 

Montgomery  v.  Reese 

261 

Barough  v.  White 

199 

North  America  v.  Wheeler   26 

Barraclough  v.  Johnson 

660 

Orange  v.  Brown 

214 

Barrel  v.  Jermy 

408 

Rochester  v.  Gould 

189 

Barreti  v.  Deere 

518,  606 

Rutland  v.  Barker 

18 

V.  Lewis 

636 

St.  Mary  v.  St.  John 

478 

Barrett  v.  Union  Mut.  &c.  Co. 

406 

Syracuse  v.  Hollister 

178 

V.  Williamson 

251 

Troy  V.  Hopping 

347 

Barrington  v.  Turner 

630 

U.  States  V.  Bank  of 

Barron  v.  Mason 

454 

Georgia 

523,601 

Barrows  v.  Capen 

■      78 

V.  Carneal 

186 

V.  Carpenter 

415 

V.  Dandridg 

e          62 

Barry  v.  Carothers 

291  a 

V.  Hatch 

202 

V.  Nesham 

481 

V.  Sill 

156 

V.  Rush 

347 

Bannatyne  v.  Bannatyne 

370, 689 

Bartelot  v.  Hawker 

51 

Bannon  v.  Angier 

665 

Bartlett  w.  Bramhall           117 

120,  265 

Baj)tist  Ch.  v.  Robbards 

681 

V.  Crittenden 

512 

Barbaroux  v.  Waters 

186 

V.  Decreet 

649 

Barber  v.  Britton 

64 

V.  Emery 

127 

V.  Fletcher 

396 

V.  Walter 

379 

V.  Root 

461 

Bartley  v.  Richtmyer      572,  573,  577  a 

In  re 

147 

Barton  ii.  Glover 

258 

Barbour  v.  Nichols 

261 

V.  Hanson 

214 

Barclay  v.  Bailey 

178 

V.  Williams 

646 

V.  Gouch 

113 

Barwell  v.  Adkins 

418 

V.  Howell 

660 

Barwick  v.  Thompson 

305 

V.  Raine 

240 

Basely  v.  Clarkson 

622 

Baring  v.  Clark                  169, 

518,  527 

Bass  V.  Bass 

447 

V.  Henkle 

391 

V.  Clive 

164 

Barker  v.  Bates 

618 

Basset  v.  Sanborn               104, 

136, 518 

V.  Braham 

621 

Basten  v.  Butter 

136 

V.  Cassidy 

435 

Batchelder  v.  Sturgis 

28,  242 

V.  McFerran 

672 

Bate  V.  Hill 

58,577 

V.  INIiller 

629 

Bateman  v.  Daniels 

28 

V.  Packenhorn 

603 

V.  Goodyear 

253 

V.  Parker 

179 

V.  Joseph 

195 

V.  Phoenix  Ins.  Co 

394 

V.  Pierce 

136 

r.  Prentiss 

136,  207 

V.  Pinder 

440 

V.  Richardson 

475,  545 

Bates  V.  Cook 

73 

Barkins  v.  Wilson 

207 

V.  Holman 

682 

l^Kirlow  V.  Bishop 

1G6 

V.  Norcross 

430,  557 

V.  Leckie 

377 

V.  Townley 

126,  128 

V.  ^Mcintosh 

389 

Batley  v.  Catterall 

173 

V.  Todd 

78 

Batson  v.  Donovan 

220 

Barnard  v.  Conger 

261 

Batterly  v  Faulkner 

435 

V.  Graves 

520 

Battin  V.  TajTgart 

490,  506 

Barnardlston  v.  Chapman 

646 

Battles  V.  HoUey 

541 

Barnes  v.  Bartlett 

265 

Bat  ton  V.  Watson 

688  a 

V.  Hatch 

297 

Baum  V.  Winston 

104 

V.  Holloway 

114 

Bawn  V.  Crandon 

79 

V.  Hunt 

627 

Baxter  v.  Abbott 

689 

Bamett  v.  Allen 

417 

V.  Earl  of  Portsmouth 

369 

V.  Smith 

161,520 

V.  Hozier 

38 

INDEX  TO   CASES  CITED. 


XI 


Section  1 

251 

342 

589 

663 

629 

468 

694 

669 

31 

367 

411 

71 

126,  128 

626 

26 

483 

453 

443 

380 

471,475,  546 

187 

78,  79,  80 

242 

292 

675 

241 

687 

342 

68  a 

240 

275 

113 

200 

516 

371 

440 

73 

11  d 

209 

584 

644 

Beckwith  v.  The  St.  Croix  Man.  Co.  183 

u.  Sydebotham  401 

V.  Shordike  94 

Bedford  v.  Hunt  492,  494 

V.  McKnow  '579 

Beeby  v.  Beeby  52,  53,  54 

Beed  V.  Blandford  124 

Beekman  v.  Satterlee  431 

Beeler  v.  Young  365 

Beers  v.  Robinson  109 

Belknap  v.  Milliken  108 

V.  Wendell  481 

Bell  V.  Ansley  380 

V  Bell  397 

V.  Buckley  518 

V.  Byrne  414 


Baxter  v.  Leland 

V.  Penniman 
V.  Taber 
V.  Taylor 
V.  Wales 

V.  Winooski  Turnp.  Co. 
Bayley  v.  Bates  • 

V.  Bayley 
V.  Homan 
Baylis  V.  Dinely 

V.  Lawrence 
Bayne  v.  Morris 
Baynhaiu  v.  Holt 
Beach  v.  Livergood 
V.  Norton 
V.  Vandewater 
V.  Wheeler 
Heal  V.  Nind 
V.  Pettit 
Bealey  v.  Shaw 
Beals  V.  Peck 
Bean  v.  Farnam 
V.  Mayo 
V.  Parker 
Beane  v.  Yerby 
Bearce  v.  Jackson 
Beard  v.  Beard 

V.  Cowman 
V.  Kirk 
Beardsley  v.  Knight 
V.  Maynard 
V.  Root 
Beaucbamp  v.  Parry 
Beaumont  v.  Greathead 
Beavan  v.  jMcDonnell 
Beck  V.  Beck 

V.  Sargent 
Beckett  v.  Button 
Beckford  v.  Crutwell 

V.  Montague 
Beekman  v.  McKay 


Section 

Bell  V.  Chaplain  109,  110 

V.  Cunningham  66 

V.  Day  68 

V.  Graham  453 

V.  Morrison  439 

V.  Reed  219 

V.  Rowland  410 

V.  Smith  393 

Bellinger  v.  Ford  339 

V.  KItts  603 

Belshaw  v.  Bush  620 

Bemis  v.  Smith  244 

Bemus  v.  Beekman  663 

Bender  v.  Fromberger  264 

Benneson  v.  Thayer  523 

Bennett  v.  Alcott  88,  273,  572,  573 

V.  Appleton  95 

V.  Deacon  421 

V.  Farnell  166 

V.  Filyaw  210 

V.  Hyde  269 

V.  Jenkins  264 

V.  Sharpe  676 

V.  Sherrod  681 

I'.  Smith  460 

Benson  v.  Frederick  253 

V.  Matsdorf  333,  337 

V.  Monroe  123 

V.  Olive  278  e 

Benthall  v.  Judkins  161,  163 

Bentley  v.  Bentley  346 

V.  Fleming  502 

Benton  v.  Sutton  589 

Berkeley  v.  Wllford  269 

Berkshire  Bank  u.  Jones  190 

AVooUen  Co.  v.  Proctor      251 

Bernard  v.  The  Commonwealth        599 

V.  Torrance  483 

Bernard!  v.  Motteaux  383 

Berney  v.  Read  71 

BeroUes  v.  Ramsay  365 

Berry  v.  Adamson  451 

V.  Heard  640 

Berryman  v.  Wise  138,  412 

Bertie  v.  Beaumont  614 

Berthold  v.  Goldsmith  482 

Berthon  v.  Loughman  397 

Besford  v.  Saunders  367 

Bessey  v.  Olllot  270 

V.  Windham  597 

Best  V.  Strong  111 

Bethell  v.  Moore  681 

Betterbee  v.  Davis  604,  605 

Betts  V.  Betts  45 

V.  GIbbins  115 

t.  Jackson  688  a 

Bevan  v.  Jones  684 


xu 


INDEX   TO   CASES   CITED. 


Biggs  V.  Dvvight 
V.  Lawrence 


Section 

Bevan  v.  Bees  604 

V.  Waters  192 

Bevin  V.  Connecticut,  &c.  Ins.  Go.     409 

Beynon  v.  Garratt  593 

Bibb  V.  Peyton  444 

V.  Thomas  681 

Bickerdike  v.  BoUman  195 

Bickford  v.  Page  240 

V.  Skewes  490 

Bicknell  v.  Dorion  449 

Biddell  V.  Dowse  80 

Biddlesford  v.  Onslow  469 

Biddulph  V.  Ather  545 

Bigelow  V.  Ilillman  614,  662 

V.  Jones         120,  224,  264,  619 

V.  Newell  78 

535 

480 

Bilbie  v.  Lumley  136,  393 

Billinghurst  v.  Vickers  675 

Billings  V.  Russell  629 

Bills  t'.  Vose  561 

Bilton  V.  Long  431 

Bingham  v.  Allport  606 

V.  Garnault  93 

V.  Keyes  215 

Binney  v.  Chapman  120 

Birch  V.  Gibbs  300 

V.  Stephenson  259 

V.  Tebbiitt  531 

V.  Wright  329 

Bird  V.  Astock  643,  648 

V.  Hoi  brook  473 

V.  Randall  29,  231,  257 

V.  Smith  241 

Birks  V.  Trippet  76 

Birt  V.  Barlow  130 

V.  Kershaw  207 

Bisbey  v.  Shaw  425 

Bishop  V.  Chitty  523 

V.  Crawshay  638 

V.  Eagle  36 

V.  Little  448 

V.  Pontland  387,  391 

V.  Shillito  638 

Bissel  V.  Price  219 

Bissell  V.  I">win  264 

V.  Ryan  252 

Rittncr  V.  Brough  261 

Bixby  V.  Brunrlige  449,  457 

V.  The  Franklin  Ins.  Co.         378 

V.  AViiitney  74,  610 

BlMflifurd  V.  I)od  454 

JJlaik  V.  Smith  603,  605 

Blackburn  v.  Blackburn  423 

Blackctt  V.  Lowes  616 

Blackham's  case  338 


Section 
Blackham  v.  Pugh  421 
Blackhurst  v.  Cockell  406 
Blackley  v.  Sheldon  629 
Blackstone  Bank  v.  Hill  529,  536 
Blackwell  v.  Justices  of  Law- 
rence Co.  264 
Blagg  V.  Sturt     >  417 
Blaisdell  v.  Gladwin  118,  114 
V.  Roberts  614 
Blake's  case  28 
Blake  v.  Barnard  82 
V.  Everett  539 
V.  Knight  676 
u.  Midland  R.  Co.  567 
V.  Pilford  422 
Blakeley  v.  Grant  163 
Blakemore  v.  Glamorganshire 

Canal  Co.  434 

Blaker  v.  Anscombe  640 

Blanchard  v.  Baker  544 

V.  Blanchard  678 

V.  Bridges  475 

V.  Hilliard  190 

V.  Sprague  489 

Bland  v.  Adams  Ex.  Co.  219 

V.  Ansley  598 

Blaney  v.  Bearce  239 

Blaymire  v.  Hayley  573,  574 

Blight  V.  Ashley  603 

V.  Rochester  557 

Blin  V.  Campbell  85,  226 

Bliss  V.  Thompson  120 

Blodgett  V.  Jackson  159 

Blood  V.  Bates  80 

ei  Goodrich  66 

V.  Harrington  11  a 

V.  Wood  317,  619 

Bloodgood  V.  Bruen  440 

Bloomer  v.  Juhel  566 

Bloss  V.  Tobey  417 

Bloxam  v.  Elsee  490 

V.  Hubbard  649 

V.  Saunders  638,  640 

Bloxsome  v,  Williams  638 

Bluck  V.  Boyes  77 

Blue  V.  Leathers  481 

Bluett  V.  Middleton  160 

Blunt  V.  Little  459 

V.  Starkie  114 

Blyth  V.  Archbold  363 

V.  Topham  473 

Board  v.  Head  635  a 

Boardman  v.  Merrimack,  &c.  Ins. 

Co.  408 

V.  Roe  121 

V.  Sill  648 

Bodley  v.  Reynolds  276,  649 


INDEX  TO   CASES   CITED. 


xm 


Bodwell  V.  Osgood 

V.  Swan 
Boehm  v.  Campbell 

V.  Garcias 
Bogart  V.  McDonald 
Bogert  V.  Haight 
Bohanon  v.  Walcot 
Boies  V.  McAllister 
Boldry  V.  Parris 


Section 
275,417,420 
275,  418 
176 
181 
11  e 
627 
683 
275 
678 


Bolivar  Man.  v.  Nepon.  Man.  Co.      539 
BoUes  V.  Beach  316 
Boiling  V.  Mayor  &  Co.  of  Peters- 
burg 539 
Bolton  V.  Colder  249 
V.  Reichard  523 
Bonafous  v.  Walker  265,  590 
Bond  V.  Bond  462 
V.  Douglass  416 
V.  Farnham  190 
V.  Fitzpatrick  199,  200 
V.  Hilton  255 
V.  Pittard  477 
V.  Ward  585,  594 
V.  Warden  520 
Bone  V.  Ekless  121 
Bonner  v.  Welborn  473 
Bonney  v.  Seely  113 
Bonzey  v.  Redman  20 
Boobier  v.  Boobier  642 
Boody  V.  McKenney  36  7 
Boon  V.  Morris          ^  639 
Boorman  v.  Nash  261 
Boosey  v.  Davidson  615 
V.  Wood  28 
Boot  V.  Cooper  449 
Booth  V.  Grove  581 
V.  Smith  30 
Bootle  V.  BlundeJl  694 
Borradaile  v.  Lowe  196 
Borrinsale  v.  Greville  36  7 
Borthwick  v.  Carruthera  362,  366 
Bosanquet  v.  Anderson  159,  165 
V.  Wray  478,  531 
Boston  V.  Lecraw  662 
Boston  Bank  v.  Chamberlin  367 
Manuf.  Co.  v.  Fiske  253 
Water-Power  Co.  v.  Gray  78,  81 
Hat  Man.  v.  Messinger  533 
&  Lowell,  &c.  Corp.  v. 

Salem,  &c.  R.  R.  Co.  468 
&  Worcester  R.  R. 

Corp.  V.  Dana  108 

Bosworth  V.  Sturtevant  624 

Bott  V.  B.u-nell  315 

Boudinot  V.  Bradford  ■    683 

Boulter  V.  Clark  85 

Boulting  V.  Boulting  51 


Bourdillon  v.  Dalton 
Bourg  V.  Bringier 
Bourne  v.  Boston 
V.  Ward 
Boutelle  v.  Melendy 
Bouton  V.  Reed 
Bovey's  case 
Bovill  V.  Wood 
Bowditch  V.  Mawley 

Ins.  Co.  V.  Winslow 
Bowen  v.  Conner 

r.  HaU 

V.  Newell 

V.  Owen 

V.  Parry 

V.  Shapcott 

V.  Steere 

V.  Stoddard 

V.  The  Hope  Ins.  Co. 
Bowers  v.  NLxon 

V.  Suffolk  Man.  Co. 
Bowles  V.  Bingham 
Bowlin  V.  Nye 
Bowling  V.  Harrison 
Bowman  v.  Wood 
Bowne  v.  Hyde 
Bowsher  v.  Calley 
Boyce  v.  Dorr 
Boyd  V.  Bird 

V.  Cleaveland 
V.  Cook 
V.  Dodson 
V.  McAlpen 
V.  Moyle 
Boydell  v.  Drummond 
Boyden  v.  Boyden 
Boyer  v.  State 
Boyle  V.  Brandon 
Boynton  v.  Page 


V.  The  Peterboro',  &c. 
Railroad 

V.  Willard 
Boys  V.  Ancell 
Bracegirdle  v.  Hincks 
V.  Orford 
Brackett  v.  Norcross 

V.  Norton 
Bradbury  v.  Bridges 
V.  Grinsell 
Bradfield  v.  Tupper 
Bradford  v.  Drew 

V.  Levy 

V.  Manly 
Bradin  v.  Dubarry 
Bradley  v.  Gregory 

V.  Heath 

V.  Spofford 


Section 

239 

207 

299 

172 

123 

261 

590 

133 

300 

406 

657 

424 

251 

605 

95 

27 

78 

251 

383 

11  d 

662 

151 

208,  642 

188 

168 

141,  203 

583 

496 

573 

190 

678 

66 

496 

11  d 

443 

367 

662 

577 

563 

358 

621 

258 

279 

89,  253,  271 

318 

141,  143 

182 

545 

444 

251 

388 

124 

66 

31 

275,  421,  424 

644 


XIV 


INDEX   TO   CASES   CITED. 


Section 

Section 

Bradley  v.  Waterhouse 

220 

,473 

Briggs  V.  Taylor 

24 

V.  White 

481 

V.  Vanderbilt 

481 

V.  Windham 

593 

V.  Wilkinson 

239 

Bradlie  v.  Maryland  Ins. 

Co. 

392 

Brigham  v.  Dana 

482 

Bradstreet  v.  Clark 

554 

V.  Foster 

139 

Brady  v.  Begun 

303 

V.  Hutchins 

440 

V.  Weeks 

473 

V.  Palmer 

66 

Brailsford  v.  Hogeworth 

186,  199 

,  200 

V.  Peters 

63,  66 

Brainard  v.  Clapp 

616 

V.  Smith 

658 

Brainerd  v.  Brackett 

458 

Bright  V.  Boyd 

549 

Braithwaite  v.  Gardiner 

164 

,  165 

V.  Wilson 

651 

Braley  v.  Goddard 

482 

Brigstocke  v.  Smith 

442 

Brammett  v.  Golden 

641 

Brimmer  v.  Long  Wharf 
Brinckerhoof  v.  Remsen 

555 

Bramner  v.  Williams 

221 

675 

Branch  v-  Burnley 

418 

Brine  v.  Featherstone 

396 

Brand  v.  Boulcott 

110 

Brinley  v.  National  Ins.  Co. 

407 

Brander  v.  Ferriday 

398 

483 

Brisco  V.  Brisco 

52 

Brandram  v.  Wharton 

444 

Bristol  V.  Burt 

642 

Brandt  v.  Bowlby 

638 

V.  Warner 

172 

Branscom  v.  Bridges 

226 

Bristow  V.  Eastman 

368 

Brant  v.  Wilson 

681 

V.  Heywood 

453 

Bray  v.  Bates 

642 

British  Museum  v.  Finnia 

660,  664 

Brayshaw  v.  Eaton 

365 

366 

Brittain  v.  Lloyd 

113 

Brazier  v.  Bryant 

147 

533 

Britton  v.  Cole 

629 

V.  Jones 

71 

V.  Turner 

136  a 

Brearley  v.  Cox 

560 

Broad  v.  Ham 

454 

Breasted  v.  Farmers'  &c. 

Ins.  Co. 

409 

Brock  V.  Copeland 

473 

Breck  V.  Blanchard 

302 

Brockelbank  v.  Sugrue 

377 

Brecken  v.  Smith 

126 

Brockway  v.  Burnap 

481,  560 

Bredin  v.  Divin 

36 

Broderick  v.  Broderick 

678 

Bredon  v.  Harman 

280 

282 

Brograve  v.  Winder 

691 

Bree  v.  Holbeck 

448 

Bromage  v.  Lloyd 

163 

Breed  v.  Cook 

523 

V.  Vaughan 

186,  189 

V.  Hurd 

602 

603 

Bromfield  v.  Jones 

584,  589 

V.  Judd 

365 

V.  Smith 

281  a 

V.  Pratt 

690 

Bromley  v.  Coxwell 

642 

Brembridge  v.  Osborne 

527 

V.  Frazier 

176 

Brent  v.  Erving 

156 

V.  Wallace 

52,  56 

Brest  V.  Lever 

626 

Brommage  v.  Prosser 

419 

Bretherton  v.  Wood 

209,  214 

228 

Brook,  In  re 

78 

Brewer  v.  Dew 

253 

V.  Bishop 

229 

V.  Dyer 

110 

V.  Briggs 

305 

V.  Knapp 

634 

V.  Carpenter 

452 

V.  Sparrow 

642 

V.  Pickwick 

221,  261 

Brewster  v.  iSIcCall 

686 

V.  Willett 

568 

Brice  V.  Randall 

658 

Brookes  v.  Warwick 

453 

Bridge  v.  Grand  Junction  Railway 

Brooks  V.  Barrett 

689,  690 

Co. 

232  a 

267 

V.  Bicknell 

506 

V.  Wain 

262 

V.  Blanchard 

414 

V.  Yates 

686 

V.  Bondsey 

239 

Bridges  v.  Blanchard 

475 

V.  Hoyt 

270,  599 

V.  Ilawkesworth 

618 

V.  Hubbard 

259 

V.  ]Mitchell 

447 

V.  Jenkins 

601  a 

V.  Smith 

565 

Brotherston  v.  Barber 

392 

Briggs  V.  Mason 

625 

Broughton  v.  Wballon 

621 

V.  Richmond 

523 

Brown  v.  Allen 

277 

V.  Smith 

78 

V.  Anderson 

342,  446 

INDEX   TO    CASES   CITED. 


XV 


Section 

Brown  v.  Bellows  78,  258 

V.  Bissett  597 

V.  Brashford  361 

V.  Brown  46 

V.  Cayuga,  &c.  R.  R.  472 

V.  Chapman  449 

V.  Dean  565 

V.  De  Selding  675 

V.  De  Winton  160 

V.  Duchesne  496 

V.  Dysinger  305 

V.  Eastern  Railroad  Co.         215 

V.  Eastern  Railroad  216 

V.  Edes  440 

V.  Feeter  526 

V.  Galloway  334 

V.  Gay  430,475,557 

V.  Gilmore  603,  605 

V.  Gooden  527 

V.  Gordon  95 

V.  Hanford  585 

V.  Hodgson             '  114 

V.  Howard  97,  433,  448 

V.  Hudson  114 

V.  Jackson  249,  523 

V.  Joddrell  396 

V.  Kendall  94 

V.  Leavitt  79 

V.  Mallett  219 

V.  Maxwell  232  6 

V.  I\Iinns  412 

V.  Moore  688 

V.  People's  Mat.  Ins.  Co.        408 

V.  Saul  601 

V.  Sayce  564 

i;.  Simons  603 

V.  State  22 

V.  Tanner  79 

V.  Thissell  659  a 

y.  Ware  618,619 

V.  Watts  520 

V.  AVood  339,  672 

Browne  v.  Knill  404 

V.  Murray  429 

V.  Powell  569 

Brownell  v.  Manchester  637 

V.  McEwen  579 

Browning  w.  Kinnear  195 

V.  Skillman  614 

Brownlow  v.  Tomlinson  625,  659 

Bruce  v.  Mitchell  556 

Brunton  v.  Hall  659 

Brush  V.  Wilkins  684 

Bryan  v.  Atwater  557 

V.  Jackson  65 

Bryant  v.  Clifford  637,  640,  646 

V.  Com'th  Ins.  Co.  249 


Section 

Bryant  v.  Eastman 

163,  166 

V.  Ocean  Ins.  Co. 

396 

V.  Ritterbush 

207 

V.  Smith 

518 

V.  Ware 

642 

Bryant's  case 

147 

Bryce,  In  re 

674 

Brydges  v.  Duchess  of  Chandos  686 

V.  Plumtree  442 

V.  Welfbrd  588,  593 

Buchanan  v.  Parnshaw  262 

V.  Port  280,  291  a 

Buck  V.  Cotton  195 

V.  Spoffbrd  78 

Buckbee  v.  U.  States,  &c.  Co.  409 

Buckingham  v.  Smith  440 

Buckland  v.  Conway  141 

V.  Johnson  648 

Buckle  V.  Bewes  596 

Buckley  v.  Buckley  359 

V.  Nightingale  356 

V.  Pirk  239 

V.  Saxe  527 

Buckman  v.  Thompson  437 

Buckmaster  v.  Grundy  264 

V.  Smith  649 

Buddlngton  v.  Shearer  277 

Bulkeley  v.  Butler  158 

Bulkley  v.  Buflington  297 

V.  Keteltas  454 

V.  Smith  454 

Bull  V.  Parker  605 

BuUard  v.  Nantucket  Bank  11a 

V.  Raynor  38 

Bullen  V.  McGillycuddy  30 

Buller  V.  Fisher                         _  219 

Bullet  V.  Bank  of  Pennsylvania         156 

Bullis  V.  Giddens  280 

Bullock  V.  Dean  432 

V.  Dommitt  245  a 

V.  Lloyd  170 

Bullythorpe  v.  Turner  562 

Bulson  V.  Lohnes  74 

Bunker  v.  Shed  431 

Bunten  v.  Orient  Ins.  Co.  65 

Burbige  v.  Jakes  209 

Burchell  v.  Hornsby  655 

Burden  v.  Halton  520 

V.  Webb  115 

Burdick  v.  Green  431 

Burges  v.  Ash  ton  411 

Burgess  v.  Burgess  41,  45,  46 

V.  Cuthil  203 

V.  Gray  232  a 

V.  Merrill       ^  24,  133 

Burghart  v.  Angerstein      363,  365,  366 

V.  Gardner  139 


XVI 


ETDEX   TO   CASES   CITED. 


Burghart  v.  Hall 
Burgoyne  v.  Showier 
Burgue  v.  De  Tastet 
Burley  v.  Bethune 

V.  Russell 
Burling  v.  Patterson 
Burlingame  v.  Burlingame 
Burn  V.  Boulton 

V.  IMiller 
Burnett  v.  Simpkins 

V.  Smith 
Burnham  v.  Allen 


Section 
366 
677,  681 
484 
453 
364 
295 
457 
444 
104 
275 
108 
172 


V.  Stafford  Savings  Bk.    41  a 


Burr  V.  Burr 

V.  Smith 
Burrage  v.  Smith 
Burrell  v.  Lithgow 

V.  North 
Burrldge  v.  Fogg 
Burrough  v.  Moss 
Burroughes  v.  Bayne 
Burrows  v.  Heysham 
Burson  v.  Edwards 
Burt  V.  Palmer 

V.  People's  Mut.  Ins.  Co. 


253 
518 
244 
599 
212 
556 

171,  200 
644 
11  a 

418, 420 

65 

406 


r.  Place  111,457 

Burton  v.  Burton  646 

V.  Hughes  637 

V.  Payne  158 

V.  Stevens  441 

Burtonshaw  v.  Gilbert  682 

Busenius  v.  Coffee  303 

Bush  V.  Canfield  261 

V.  Fox  493 

V.  Parker  98 

V.  Prosser  418,  425 

V.  Sheldon  672 

V.  Steinman  232  a,  232  b 

Bushby  v.  Dixon  359,  360 

Bushell  V.  Passmore  300 

Bushwood  V.  Pond  544,  568 

Bussy  V.  Donaldson  253 

Butcher  v.  Carlile  279 

V.  London,  &c.  S.  W.  R.      221 

Butler  V.  Basing  213 

V.  Gale  242 

V.  Heane  216 

V.  Ilildreth  369 

Butterfield  v.  Forrester  232  a,  267,  473 

V.  Harrell  116 

V.  Windle  284 

Buttcrmere  r.  Hayes  282 

ButttTworth  V.  Ld.  Despencer  404 

Button  V.  Hay  ward  423 

Butts  V.  Dean  520 

Byam  v.  BuUard  496 

Bye  i;  Bower  11  e 


Byers  v.  McClanahan 

Byne  v.  Moore 

Byrne  v.  Crowninshield 


Section 

296,  297 

455 

439 


Cabanese  v.  Martin 
Cabot  V.  Haskins 
Cabot  Bank  v.  Morton 
V.  Russell 
Caddy  v.  Barlow 
Cadman  v.  Lubbock 
Cadogan  v.  Cadogan 
Caine  v.  Coulton 
Cairnef.  v.  Bleecker 
Caldwell  v.  Murphy 

V.  Wentworth 


454 
109 
122,  164 
188 
453 
604 
41 
526 
66, 642 
222 
532  a,  533 
Caledonian  R.  Co.  v.  Lockhart  78,  79 
Calhoun  v.  Vechio  603 

Call  V.  Buttrick  465 

V.  Hagger  689 

V.  Lothrop  606 

Callan  v.  Gaylord  416 

Callot  V.  Haigh  195 

Calvart  v.  Horsfall  334 

Cambridge  v.  Hobart  440 

Camden  v.  Anderson  378 

Camden  and  Amboy  Railroad  v. 

Baldauf  216 

V.  Burke  215,  218,  221 

Camelo  v.  Britten  389 

Cameron  v.  The  State  49 

Camp  V.  Camp  297,  305 

Campbell  v.  Arnold  616 

V.  Gordon  19 

V.  Hewlitt  251 

V.  Jones  235 

V.  Kincaird  141 

V.  Lewis  240 

V.  Morse  219 

V.  Pettengill  195 

V.  Phelps  68,  580 

V.  Proctor  615 

V.  Race  627 

V.  Stakes  368 

V.  Webster  189 

V.  Wilson  475,  545 

Campbell's  case  347 

Campion  v.  Bentley  351 

Campton's  Petition  662 

Canada  v.  Canada  104 

V.  Southwick  585 

Canal  Bank  y.  Bank  of  Albany  164 

Canfield  v.  Ives  519 

Ciinham  v.  Fisk  645 

Canning  v.  Williamstown  267 


INDEX    TO    CASES    CITED. 


Section 

Canot  V.  Hughes  645 

Capen  v.  Barrows  480,  481 

V.  Washington  Ins.  Co.  400 

Capers  v.  Wilson  658 

Capp  V.  Topham  115 

Capron  v.  Balmond  579 

Card  V.  Case  230,  231 

Carey  v.  Gerrish  112 

V.  Stephenson  435 

CargiU  V.  Taylor  589 

Carley  v.  Vance  600 
Carlton  v.  Ludlow  Woollen  Mill      440, 

483 

Carnegie  v.  Morrison  109 

V.  Waugh  109 

Carpenter  v.  Goin  529 

V.  Gookin  11  fi 

V.  Prov.  Wash.  Ins.  Co.    406 

V.  Shelden  454 

V.  Smith  502 

V.  Spencer  71 

V.  Wahl  577 

Carpue  v.  London  Railway  Co.         222 

Carr  v.  Clarke  573 

V.  Davies  645 

V.  Foster  250,  545 

V.  Hilton  448 

V.  Lancashire,  &c.  R.  R.  Co.     215 

Carrlngton  v.  Carnock  278  a 

V.  Roots  627 

V.  Taylor  254 

Carrol  v.  Upton  186 

Carroll  v.  Norwood  317 

Carruthers  v.  Gray  388 

Carter  v.  Andrews  417 

V.  Carter  666 

V.  Johnson  625 

V.  Smith  174 

V.  Talcot  141 

V.  Thomas  686 

Cartland  v.  Morrison  638 

Cartwrlght  v.  Cartwright  689 

V.  Cooke  31 

Caruth  v.  Allen  626 

Carver  v.  Miller  651 

Carvlck  v.  Vickery  159 

Gary  v.  Bancroft  601 

Case  V.  Barber  31 

V.  Boughton  524 

V.  Case  464 

V.  Hartford  Ins.  Co.  404 

D.  Roberts  119 

Cash  V.  Giles  124 

Cass  V.  Cameron  590 

Cassel  V.  Western  Co.  563 

Cassell  V.  Cooke  116 

Casseres  v.  Bell  1 9 

VOL.  II.  h 


Cassiday  v.  McKenile 

Casson  V.  Dade 

Castricpie  v.  Bernabo 

Castro  V.  Bennett 

■  V.  Richardson 

Caswell  V.  Coare 

V.  Wendell 

Catherwood  v.  Caslon 
V.  Chabaud 

Cator  V.  Stokes 

Catskill  Bank  v.  Gray 

Catteral  v.  Catteral 
i\  Kenyon 
V.  Sweetman 

Catterls  v.  Cowper 

Cattlin  V.  Hills 

Cauuce  V.  Spanton 

Caunt  V.  Thompson 

Cave  V.  Holibrd 

Cavendish  v.  • 


Section 

68  a,  518 

678 

187 

142 

310 

262 

264 

49, 461 

341 

587 

481 

460 

645 

4G0 

618 

231  a 

644 

186,  291 

686 

80 
6  74 
467 
337 
461 
178 
189 

36 


Cavett's  Appeal 

Cavey  v.  Ledbitter 

Cawdor  v.  Lewis 

Caj^brd's  case 

Cayuga  Co.  Bank  v.  Hunt 

V.  Warden 

Cearney  v.  Irving 

Cecil  V.  Clarke  454,  458 

Centi-al  Bank  v.  Copeland  301 

V.  Davis  19C 

Central  Bridge  Corp.  v.  Abbott         108 

Chace  V.  Lincoln  692 

Chadwick  v.  Trower  466 

Chalmers  v.  Shackell  425 

Chamberlain  v.  Cuyler  445 

V.  Harlewood  226,  571 

V.  Shaw  644,  649 

Chamberlyn  v.  Delarlve  523 

Chambers  v.  Caulfield  51 

V.  Games  292 

V.  Robinson        418,  449,  453 

Champion  v.  Terry  156 

Champlin  v.  Tilley  338,  483 

Chancellor  v.  Schott  532  a 

Chandler  v.  Morton  330 

V.  Parks  133 

V.  Temple  297 

V.  Thompson  471 

V.  Worces.  Ins.  Co.  405,  408 

Chapel  V.  Bull  241,  242,  297 

V.  Hickes  136,  143 

Chapin  V.  Norton  256 

Chapman  v.  Annett  195 

V.  Davis  338 

V.  Pickersgill  449 

V.  Sutton  II  d 

Chappel  V.  Lee  359 


XVUl 


INDEX   TO   CASES   CITED. 


Section 

Chappie  0.  Cooper  3G5 

Ciiard  V.  Fox  186 
Charles  River  Bridge  v.  Warren 

Bridge  4 

Chariest.  &  Col.  Boat  Co.  v.  Bason  377 

Charnlcy  v.  Wistanley  79 

Charrington  v.  Laing  258 

V.  Milner  207 

Charters  v.  Bayntum  365 

Chase  v.  Cox  529 

V.  D>vinel  111,  121 

V.  Eagle  Ins.  Co.  403 

V.  Keyes  599 

V.  Stevens  484 

V.  Weston  240 

Chaters  v.  Bell  166 

Chatterton  v.  Saul  560 

Chauncev  v.  Yeaton  108 

Cheap  y.'Harley  122 

Cheasley  v.  Barnes  697,  629 

Cheek  v.  Roper  181 

Cheetham  v.  Hampson  472 

Cheever  v.  Mirrick  141 

V.  Pearson  627 

V.  Perley  440,  528 

Cheminant  v.  Thornton  605 

Chesapeake  Ins.  Co.  v.  Stark  393 

Cheseldine  v.  Brewer  460 

Chesmer  v.  Noyes  183 

Chess  V.  Chess  297 

Chicago,  &c.  R.  R.  Co.  y.  Warren    219 

Chichester  v.  Phillips  339 

Chick  V.  Pilsbury  187 

Chicopee  Bank  v.  Chapin  199 

V.  Eager  188,  251 

Chievlv  V.  Bond  447 

Child  V.  Homer  275 

0.  Ilordon  75 

V.  Mnrley  114 

Chilton  V.  Whiffin  1 70 

Chinn  I'.  ]Morris  93,267 

Clii])[)endale  v.  Lancash.  &c.  Railw.  215 

Cliirai;  v.  Reinicker  333 

Cliisinan  v.  Count  126 

Chitty  V.  Naish  533 

Cholmondeley  (Earl  of)  v.  Lord 

Clinton  140 
Chouteau  v.  Steamboat  St.  An- 
thony 212 
Choute-aux  v.  Leech  64 
Christian  v.  Coonibe  885 
Christie  v.  Cowell  423 
V.  Griggs  221,  222 
Christopher  v.  Christopher  684 
Christophers  c  Sparkc  528 
Christy  v.  Fleinington  440 
V  Reynolds  136 


Section 

Christy  v.  St.  Louis  121 

Chubb  t;.  Gsell  253,419 

V.  Flannagan  416 

V.  Westley  418 

Church  V.  Crocker  684 

Churchill  v.  Perkins  115 

V.  Siggers  449 

V.  Speight  295 

V.  Watson  253,  271 

Churchman  v.  Smith  481 

Churchward  v.  Studdy  620 

Cilley  V.  Cilley  675,  689 

V.  Tenny  35 

Cincinnati,  &c.  Co.  v.  Timberslake    421 

Ciocci  V.  Ciocci  44 

City  Bank  v.  Cutter  190,  607 

Clancy  v.  Houdlette  618 

Clapham  v.  Higbam  79 

Clapp  V.  GUdden  636 

Clare  v.  Maynard  262 

Clark  V.  Alexander  441 

V.  Baker  63,  251 

V.  Barnwell  220 

V.  Bigelow  183 

V.  Bogardus  624 

V.  Burdett  534 

V.  Burt  78 

V.  Clark  460 

V.  Cochran  669 

V.  Courser  141 

V.  Dales  261 

V.  Draper  640 

V.  Eldridge  189 

V.  Foxcroft        113,  585,  593,  597 

V.  Gilbert  104 

V.  Gray  209 

V.  Iloughman  338,  448 

V.  Mann  291  a 

V.  Manuf.  Ins.  Co.  396 

V.  Marsiglia  261 

V.  Metropolitan  Bank  64 

V.  New  England,  &c.  Ins.  Co.  405, 

406 

V.  Newsam  253 

V.  Pease  301 

V.  Pinney  261,  519 

V.  Ray  297 

V.  Scripps  681 

V.  Skinner  660 

V.  Smith  103,  104 

V.  Spence  213 

V.  Swift  240 

V.  AVebb  126 

V.  Whitaker  642.  649 

V.  AVilder  26 

V.  Wright  688  a 

Clarke  v.  Clarke  642,  643,  648 


INDEX   TO   CASES    CITED. 


XIX 


Section  ' 

BectioQ 

Clarke  v.  Davlea 

564  ' 

Cockell  V.  Bridgman 

156 

V.  Dinsmore 

30,  31  i 

Cocker  v.  Cooper 

631 

V.  Dutcher 

441 

V.  Crompton 

626 

V.  Gray 

401 

Cockerill  v.  Armstrong 

95 

V.  Holmes 

25 

Cockrane  v.  Libby 

278^ 

V.  Leslie 

365 

Cockshot  V.  Bennett 

121 

V.  May 

597 

Codling  V.  Johnson 

544 

V.  McAnulty 

244 

Codman  v.  Armstrong 

632  a 

V.  Morey 

19 

V.  Evans 

224 

V.  Needles 

212 

V.  Freeman 

613 

V.  Soripp 

681 

V.  Jenkins 

120 

V.  Spenee 

638 

V.  Winslow 

655 

Clarkson  v.  Carter 

486 

CofEn  V.  Coffin 

321 

Clay  V.  Langslow 

485 

V.  Cottle 

80,  432 

r.  WiUan 

220 

V.  Field 

613, 635  a 

Clayards  v.  Detbick 

232  a 

V.  Newb'p't  Ins.  Co. 

382,  403 

Clayton  v.  Blackey 

329 

V.  Otis 

681 

V.  Corby 

250 

544 

Cogswell  V.  Dolliver 

445 

V.  Hunt 

216 

Cohen  v.  Hinkley 

382,  384 

V.  Kynaston 

281 

V.  Morgan 

453 

V.  Stone 

514 

Colt  V.  Commercial  Ins.  Co. 

251,377 

V.  WardeU           410, 

460, 

461, 

V.  Houston 

31 

4G2 

V.  Starkweather 

295 

Clayton's  case                      529 

532 

533 

Coker  v.  Birge 

465,  473 

Cleave  v.  Jones 

440 

444 

Colburn  v.  Richards 

467 

Cleaveland  u.  Cleaveland 

660 

Colby  V.  Sampson 

689 

V.  Dasbwood 

65 

Colcord  V.  Swan 

11  a 

V.  -Union  Ins.  Co. 

399 

Cole  V.  Blake 

605 

Clegg  V.  Fields 

331 

V.  Goodwin 

215 

Clemence  v.  Steere 

656 

V.  Sprowl 

468 

Clement  v.  Comstock 

78 

V.  Stewart 

614 

Clementson  v.  AVilliams 

441 

V.  Terry 

646 

Clemson  v.  Davison 

563 

V.  Trull 

536 

Cleverly  v.  Brett 

347 

V.  Turner 

84 

Cbtibrd  v.  Burton 

65 

Colebrook  v.  MerriU 

639 

V.  Cony 

26 

Coleman,  In  re 

678 

Cllft  V.  Stockton 

117 

V.  Forbes 

444 

Clifton  V.  Hooper 

684 

V.  Parish 

332 

V.  INIurray 

678 

V.  Riches 

64,  64  a 

V.  Strong 

111 

,121 

V.  Roberston 

688 

Close  V.  Pbipps 

121 

Coleraine  v.  Bell 

633 

Clo.'^son  V.  Means 

38 

Coles  V.  Bell 

608 

Clum  V.  Brewer 

503 

V.  Clark 

638 

Clunnes  v.  Pezzey 

255 

V.  Trecothick 

60,  61 

Clutterbuck  v.  Cbaffers 

414 

V.  Wright 

645 

Coates  V.  Davis 

166 

Colgate  V.  Buckingham 

435 

V.  Hugbes 

672 

,  684 

CoUamer  v.  Foster 

480 

V  Wilson 

365 

College  V.  Home 

442 

Coats  I'.  Chaplin 

212 

Collings  V.  Hope 

251 

Cobb  V.  Bryant 

566 

CoUingwood  v.  Irwin 

244 

V.  Dows 

638 

Collins  V.  Boston  &  M.  R.  R 

208,  221 

Cobden  V.  Bolton 

217 

V.  Evans 

230  a,  561 

Coble  V.  WiUborn 

243 

V.  Perkins 

625 

Coburn  v.  Hollis 

430 

,  557 

V.  Prentice 

658,  660 

V.  Odell 

520 

V.  Todd 

93 

Cock  V.  Ricliards 

259 

V.  W^estbury 

801 

Cockcroft  V.  Smith 

95 

CoUinson  v,  Margesson 

440 

KX 


INDEX   TO   CASES    CITED. 


Colsell  V.  Budd 
Colson  V.  Bonzey 

V.  Selby 
Colt  V.  Barnard 

V.  McMechen 
Coltman  ij.  Marsh 
Colton  V.  Goodridge 


Section 
290,  528 
239 
131 
179 
219 
443 
300 


Columbia  Ins.  Co.  v.  Lawrence  387 
Colwill  V.  Reeves                         614,  622 

Combe  v.  Pitt                        _  286 
Commerce  (Bank  of)  v.  Union 

Bank  164 
Commercial  Bank  v.  Cunningham     536 

V.  Reckless  297 
V.  St.  Croix 

Man.  Co.  195 

V.  Wilkins  585 

Commissioners  v.  Allen  588 

V.  Hanion  292 

V.  Rose  141 

V.  Taylor  665 

Commonwealth  v.  Bradford  459 

V.  Call  48 

V.  Chapman  286 

V.  Cole  662 

V.  Davis  457 

V.  Doane  251 

V.  Drew  26 

V.  Dudley  241 

V.  Emery  299 

V.  Eyre  83 

V.  Fairbanks  371 

V.  Harmon  418 

V.  Hawkins  374 

V.  Horton  47 

V.  Hunt  461 

V.  Hui'ley  462 

V.  Isaacs  48 

V.  Lahey  47 

V.  Littlojohn  461 

V.  McDonald  660 

V.  Mecklin  11  & 

V.  Merriam  47 
V.  Moseler      371  a,  372 

V.  Newbury  664 

V.  Norton  26 
V.  Old  Colony 

R.  R.  662 

V.  IVjepscot  78 

V.  Putnam  48 

V.  Shepard  150 

V.  Snelling  453 

V.  Strieker  150 

V.  Thrasher  47 

Compagnon  v.  Martin  414 

Compton  V.  Chandless  144,  433 

V.  Jones  '        112 


Compton  V.  Richards 
Comstock  V.  Hadlyme 

V.  Smith 
Conard  v.  Pacific  Ins,  Co. 
Concanen  v.  Lethbridge 
Condit  V.  Baldwin 
Cone  V.  Baldwin 
Conklin  v.  Pearson 
Conn  V.  Coburn 


Section 
471 
690 
520 
272 
586 
68 
136 
444 
365 

Connecticut,  State  of,  v.  Jackson       529 

Conner  v.  Henderson  124 

Conover  v.  Mut.  Ins.  Co.  Albany      405 

Conrad  v.  INIassasoit  Ins.  Co.  78 

Conroe  v.  Birdsall  367 

Consequa  v.  Willing  249 

Converse  v.  Citizens',  &c.  Ins.  Co.     405 

V.  Converse  683 

Cook  V.  Babcock  557 

V.  Bachellor  227 

V.  Deaton  366 

V.  Ellis  253 

V.  Green  616 

V.  Hall  467 

V.  Harris  239 

V.  Hartle  649 

V.  Round  288 

V.  Stokes  414 

V.  The  State  49 

V.  Ward  417 

V.  Wildes  421 

V.  Wortham  577 

Cook's  Will  .  681 

Cooke  V.  Hughes  323 

V.  Lloyd  462 

V.  Munstone  103,  104 

V.  Rhodes  140 

w.  Stafford  11  d 

Coolidge  I'.  Brigham  262 

V.  Choate  272 

V.  Learned  639 

Coon  V.  MotFett  575 

V.  Syracuse,  &c.  R.  R.  232  b 

Cooper  V.  Barber  425,  473,  475 

V.  Blandy  305,  565 

V.  Bockett  676,  681 

V.  Galbraith  316 

V.  Johnson  79 

V.  Lloyd  46 

V.  Meyer  166 

V.  South  484 

V.  Stinson  71 

V.  Stower  627 

Coore  V.  Callaway  608 

Cope  V.  Cope  150 

V.  Humphreys  528 

V.  Romeyne  638 

Copeland  v.  Merchants'  Ins.  Co.  66 


INDEX    TO   CASES    CITED. 


XXI 


Section 
Copeland  v.  New  England  Ins.  Co.   400 

Copes  V.  Pearce  462 

Coppe  V.  McDougall  195 

Copper  V.  Power  523 

Coppin  V.  Braithwaite  222  a,  253, 

267,  272 

Corcoran  v.  Gnrney  391 

Cordon  v.  Ld.  Massarene  115 

Corfield  v.  Coryell  614,  616 

Cornell  v.  Le  Roy  406 

Corney  v.  Da  Costa  195  ■ 

Corning  v.  Corning  93 
Cornish  v.  Keene                  490,  494,  502 

Cornwall  v.  Gould  113,  519 

V.  Isham  691 
Corporation  of  Clergymen's  Sons 

V.  Swainson  347 

Corson  V.  Corson  44 

Cortelyou  v.  Van  Brundt  616 

Cortland  v.  Underhill  78 

Cory  V.  Scott  197 

Coryell  v.  Colbaugh  269 

Corytou  v.  Littleby  227 

Cossy  V.  Diggons  564 

Coster  V.  Murray  447 

Costigan  v.  M.  &  H.  Railroad  Co.  261  a 

Cothers  v.  Keever  261,  262 

Cottani  V.  Partridge  445,  447 

Cotterell  v.  Griffitlis  474 

V.  Jones  449 

Cottle  V.  Aldrich  343,  344 

Cotton  V.  Pocassett  Manuf.  Co.  544 

Countess  of  Salop  v.  Crompton  615 

Courtten  v.  Touse  66 

Couscher  v.  Toulan  39 

Cousens  v.  Paddon  143 

Coutts  V.  Gorham  471 

Covell  I'.  Hill  640,  649 

V.  Laming  622 

V.  Weston  358,  361 

Covert  V.  Irwin  303 

Cowan  V.  Silliman  243 

Cowell  V.  Edwards  114 

Cowling  V.  Higijinson  659 

Cowlishaw  v.  Cheslyn  632 

Cowper  V.  Andrews  545 

Cowperthwaite  v.  Sheffield        183,  533 

Cox  V.  Callendar  332 

V  Dugdale  271 

i".  Glue  616 

V.  Hickman  482 

V.  Strode  264 

V.  Sullivan  144,  146 

Coxe  V.  Harden  640 

V.  Heisley  215 

V.  State  Bank  601 

Coxedge  v.  Coxedge  61 


Section 

421 

12 

113 

135 

196 

256 

871 

642 

78 

445 

648 

112,  118 

425 

556 

30 

78 

365 

151 

299 

108 

338 

190 

424 

629 

142 

42,50 

258,  259 

166 

189 

V.  People's,  &c.  Ins.  Co.       251 
Crockett  v.  Crockett  656 

Crofoot  V.  Allen  74 

Croft  V.  Croft  46 

V.  Pawlett  671 

Crofton  V.  Ilsley  668 

Crofts  V.  Waterhouse  221 

Crogate's  case  95,  632 

Cromwell  i>.  Lovett  620 

Crook  V.  McTavish  434 

V.  Wright  139 

■Crooker  v.  Hutchinson  145,  146 

Cropper  v.  Nelson  207 

Crosby  v.  Wadsworth  615 

V.  Wyatt  439 

Cross  V.  Lewis  645 

Crosse  v.  Smith  194,  349 

Crossen  v.  Hutchins  195 

Crossland  v.  Murdock  672 

Crossley  v.  Beverley  490 

Crouch  V.  Lond.  &c.  Railw.  221 

Croughton  v.  Blake  679 

Crow  V.  Rogers  109 

Crowley  v.  Barry       "  203 

V.  Cohen  _       _  379 

Crownlnshield  v.  Crowninshield         689 
V.  Robinson  136 

Crowther  v.  Ramsbottom  629 


Coxhead  v.  Richards 
Coxon  V.  Lyon 
Craig  V.  Craig 

V.  Missouri 
Crain  v.  Colwell 

V.  Petrie 
Cram  v.  Cram 

V.  ThisseU 
Cramp  v.  Adney 
Cranch  r.  Kirkham 

V.  White 
Crandall  v.  Bradley 
V.  Dawson 
Crane  v.  Crane 
Cranley  v.  Hillary 
Cranston  v.  Kennedy 
Crantz  v.  Gill 
Craufurd  v.  Blackburn 
V.  The  State 
Cravath  v.  Plymptou 
Crawford  v.  Whital 
Creamer  v.  Perry 
Creevy  v.  Carr 
Cremer  v.  Higginson 
Cresswell  v.  Byron 
Crewe  v.  Crewe 
Crisdee  v.  Bolton 
Critchiow  V.  Parry 
Crocker  v.  Getchell 


xxu 


INDEX  TO   CASES   CITED. 


Crozer  v.  Pilling 
Crutchly  r.  Mann 
Ciibitt  V.  Porter 
Cull  V.  Sarmin 
Cumber  v.  Wane 


Section 

453,  606 

163 

617 

13 

28,31 


Cumberland  v.  North  Yarmouth         74 

Cumen  v.  Smith  412 

Cumming  v.  Hackley  113,  520,  521 

Cummings  v.  Noyes  108 

V.  Putnam  601 

Cunningham  v.  Day  11  b 

V.  Lawrenta  120 

Curne  v.  Donald  295 


Cuny  V,  Com'th  Ins. 

Curtis  V.  Angier 
V.  Carson 
V.  Derring 
V.  Drinkwater 
V.  Francis 
V.  Hall 
V.  Hannay 
V.  Hoyt    • 
V.  Hunt 


Co. 


396,  408 
662 
95 
244 
221 
556 

295,  300 
262 
272 
347 


V.  Rochester  &  S.  Kail- 
road  268  & 
V.  Vernon  344,  345,  350 
r.  Ward  649 
Curtiss  V.  Greenbanks  601 
V.  Rochester,  &c.  R.  R.  Co. 

222, 268  h 

Gushing  v.  Adams  622 

V.  Aylwyn  686 

V.  Gore  112 

Cushman  v.  Blanchard  243 

V.  Waddell  93 

Cuthbert  v.  Cumming  251 

V.  Peacock  524 

Cutler  V.  Close  136,  143 

V.  How  259 

V.  Johnson  259 

V.  Lincoln  556 

Cutter  V.  Powell  103 

Cutts  V.  Spring  618 

Cuyler  v.  Nellis  187 


D. 


D  Agiiilar  v.  D'Aguilar  44,  53,  54 

D;iirm'tt  V.  Adams  635  a 

Daily  V.  Beck  340 

Dain  V.  WicofT  574,  579 

Daines  v.  Hartley  414,417 

Dalby  V.  India,  &c.  Ins.  Co  409 

Dale  V.  Birch  687 

V.  Wood  95 

Dalglish  V.  Davidaon  393 


Section 

Dally  way  v.  Tuiill 

411 

Dalton  V.  Favour 

226 

i;.  Gib 

366 

Dalzell  V.  Mair 

381 

Dame  v.  Kenney 

424 

Damon  v.  Bryant 

597 

V,  Roach 

268  a 

Dan  f>.  Brown 

681, 694 

Dana  v.  Combs 

367 

V.  Fiedler 

261 

V.  Valentine 

473,  545 

Dance  v.  Robson 

424 

Dane  v.  Kirkwall 

370,  371 

Danforth  v.  Culver 

441,443 

V.  Pratt 

2G5 

V.  Schoharie 

127 

Daniel  v.  North 

475,  545 

Daniels  v.  Daniels 

644 

V.  Pond 

615 

Danielson  v.  Andrews 

11  e 

Darby  v.  Mayer 

672 

V.  Smith 

635 

Darling  v.  B.  &.  W.  R.  R.  Co 

210 

Dauce  v.  Luce 

95 

Davenport  v.  Lamson 

471 

V.  N.  E.  Mut.  Ins. 

Co.      406 

V.  Rackstrow 

478 

V.  Russell 

89 

V.  Schram 

523 

David  V.  Ellice 

127 

V.  ^loore 

213 

V.  Preece 

11  e 

Davidson  v.  Graham 

215 

V.  Willasey 

382 

Davies  v.  Jenkins 

144 

V.  Mann 

220 

V.  Nichols 

644 

V.  Vernon 

644,  645 

V.  Williams 

671,  574 

Davis  V.  Barrington 

104 

V.  Briggs 

478 

V.  Calvert 

690 

V.  Davis 

688  a 

V.  Dodd 

156 

V.  Griffith 

275 

V.  Hardy 

454 

V.  James 

212 

V.  Nash 

616 

V.  Oswell 

276 

V.  Saunders 

94 

V.  Sigourney 

688  a 

V.  Smith 

445 

V.  West 

431 

V.  AVhite 

614 

V.  Willan 

216 

Davison  v.  Hanslop 

127 

V.  Oswell 

648 

INDEX    TO    CASES    CITED. 


XXlll 


Davison  v.  Penton 
V.  Smith 
V.  Stacey 
V.  Stephens 
Davy  V.  Faw 

V.  Smith 
Dawes  v.  Peck 
V.  Shed 
Dawson  v.  Chamney 
V.  Lawley 
V.  Moore 
V.  Tibbs 
Dax  V.  Ward 
Day  V.  Bream 
V.  HoUoway 
V.  Lamb 
V.  Nix 
V.  Ridley 


Section 

257, 258 

367,  440 

5G4 

539,  659,  664 

78 

678 

212,  640,  648 

446 

230 

139 

472 

135 

136 

415 

255 

431 

136 

213 


Dean  v.  Am.  Mut.  L.  Ins.  Co.           409 
V.  Dean                   675,  688  a,  694 
V.  James  604 
V.  Mason  496 
V.  Peale  88,  273,  574 
V.  Pitts  443 
V.  Williams  530 
&c.  of  Ely  V.  Warren  250 
Deane  v.  Clayton  473 
Dearborn  v.  Dearborn  145,  146 
Deblois  v.  Ocean  Ins.  Co.  400 
De  Berkom  v.  Smith  483 
De  Bernales  v.  Fuller  119 
Decker  v.  Freeman  296 
V.  Mathews  638,  649 
Decreet  v.  Burt  478 
De  Crespigny  v.  Wellesley  424 
Deering  v.  Sawtel  330 
Defries  v.  Davis  418 
De  Gaminde  v.  Pigou  381 
De  Hahn  v.  Hartley  406 
De  la  Chaumette  v.  Bank  of  Eng- 
land 172 
De  la  Courtier  v.  Bellamy  12 
Delacroix  v.  Thevenot  414 
Delancy  v.  McKean  331 
Delano  v.  Blake  367 
De  la  Torre  v.  Barclay  442 
Delavergne  v.  Norrls  242 
Delaware  and  Hudson  Canal  Co.  v. 

Westchester  Co.  Bank  109 

Delesal  r.  Higley  418,  454,  455 

Delling  V.  ]\Iatchett  74 

Delvaile  V.  Plomer  594 

De  ^lantort  v.  Saunders  25 

De  Marentille  v.  Oliver  82 

Demarest  v.  Willard  240 

V.  Fairlee  297 

Den  V.  Matlock  676 


Section 

Den  V.  McCan  539 

V.  Yancleve  690 

Denew  v.  Daverell  136 

Denham  v.  Crowell  290 

Denis  v.  Warder  686 

Denison  v.  Hvde  253 

Denn  v.  Chubb  336 

V.  Flack  112 

V.  Mason  295 

V.  Purvis  317 

V.  Wright  66 

Dennett  v.  Crocker  557 

Dennie  v.  Harris  640 

V.  Hart  520 

Denning  v.  Roome  660 

Dennis  v.  Cumming  258 

V.  Pawling  93 

Dennistoun  v.  Stewart  189 

Denny  v.  Cabot  481   482 

V.  Lincoln  115 

V.  N.  Y.  Cen.  R.  R,  219 

Denton  v.  Franklin  689 

Denvs  V.  Shuckburg  433 

Derbv  v.  Gallup  637 

Derisley  i'.  Custance  239,  354 

Derosne  v.  Farie  489 

De  Rothschild  v.  Royal  Mail,  &c.  Co.  21 9 

Derwort  u.  Loomer  141,  221 

Desha  v.  Holland  251 

Deshon  v.  Eaton  440 

V.  Merchants'  Ins.  Co.  400 

De  Sobry  v.  De  Laistre  669 

Despatch  Line,  &c.  v.  Bellamy 

Man.  Co.  668 

Dessebats  v.  Berquier  642 

Deuch  V.  Walker  642 

De  Vera  Maraver,  In  re  668 

Devereaux  i'.  Barclay  642 

Devoe  v.  Croydon  648 

Dew  V.  Clark  371  a 

r.  Parsons  121 

Dewey  v.  Baj-ntum  594 

V.  Brown  317 

V.Dewey  295,676,6  78 

V.  Humphrey  607 

V.  Osborn  333,  336 

De  Wolf  V.  Dearborn  640 

V.  Murray  186 

De  Wolfe  v. 147 

Dexter  v.  Paugh  599 

Dey  V.  Dox  261 
De  Zichy  Ferraris  v.  Marq.  of 

Hertford  668 

Dibble  V.  Brown  213,  221 

Dick  I'.  Page  68  a 

Dickenson  v.  Dickenson  381 

Dickerman  v.  Graves  46 


XXIV 


INDEX   TO    CASES    CITED. 


Section 

Section 

DIckerson  v.  "Watson 

85 

Doe  V.  Evans 

6  74 

Dickey  v.  Sleeper 

80 

d.  Farr  v.  Hicks 

58 

Dickinson  v.  Barber   275, 

424,  690,  691 

V.  Fenn 

317 

V.  Boyle 

254,  268 

V.  Fleming   • 

462 

V.  Howard 

49 

V.  Forster 

321 

V.  Prentice 

203 

V.  Frowd 

325 

17.  Shee 

602 

V.  Grazebrook 

463 

V.  Williams 

445 

V.  Griffin 

354 

V.  Winchester 

211 

V.  Grubb 

321,  325 

Di:kson  v.  Lodge 

380 

V.  Hare 

336 

Digby  V.  Atkinson 

245  a 

V.  Harris 

321,  625,  681 

Dimes  v.  Petley 

231 

17.  Hersey 

691 

Dimmick  v.  Lockwood 

264 

V.  Hilder 

665 

Dietrich  v.  Berk 

616 

V.  Horner 

78 

Dillingham  v.  Smith 

561 

V.  Huddart 

336 

Dishorn  v.  Denaby 

109 

V.  Inglis 

325 

D' Israeli  v.  Jowett 

384 

17.  Jesson 

278/,  355 

Ditcham  v.  Bond 

225,  627 

v.,  Johnson 

325 

V.  Chivis 

209 

V.  Jones 

439 

Dixon  V.  Bell 

268 

V.  Kjiight 

297 

V.  Clarke 

601 

V.  Knightley 

323 

V.  Deveridge 

126 

V.  Lambly 

321 

V.  Dunham 

251 

V.  Lancashire 

684 

V.  Hancock 

561 

17.  Lewis 

305 

Dpbree  v.  Eastwood 

193 

V.  Lonsdale 

317 

Dobson  V.  Land 

405 

V.  Lucas 

324 

V.  Sotheby 

408 

V.  Manifold 

678 

Dookray  v.  Dunn 

174 

V.  Meaux 

325 

Dodd  V.  Holmes 

467,473 

17.  Mills 

305 

V.  Kyfiin 

625 

V.  Mitchell 

305 

V.  Nonis 

58,  577,  579 

V.  Mizen 

305 

Doddington  v.  Hudson 

469 

V.  Murless 

316 

Dodge  *'.  Morse 

27 

V.  Nepean 

355 

Dodwell  V.  Burford 

84 

V.  Palmer 

321,  824 

V.  Gibbs 

332 

V.  Pasquali 

321 

Doe  V.  Andrews 

278  f/,  f 

V.  Pattison 

674 

V.  Archer 

323 

V.  Payne 

245 

V.  Banks 

327 

V.  Pegge 

306 

V.  Barford 

684 

17;  Porter 

641 

j;.  Batten 

321,  325 

V.  Potts 

317 

V.  Baytup 

305 

V.  Prosser 

318,  557 

V.  Bevan 

245 

I'.  Read 

317 

V.  Bird 

318 

V.  Rickarby 

245,  328 

V.  Burton 

305 

V.  Roe 

318 

V.  Calvert 

321, 693 

V.  Salter 

625 

V.  Carver 

245 

V.  Smith 

316 

V.  Chaplin 

317,  323 

V.  Somerton 

322 

V.  Clarke 

306 

V.  Spiller 

323 

17.  Creed 

325 

17.  Steel 

314 

V.  Crick 

321,  324 

V.  Trye 

591 

17.  Cu(T 

318 

V.  Watkins 

324 

V.  Davis 

336, 456,  677 

V.  Watson 

305 

17.  Deakin 

278  A 

V.  Whippel 

317 

I'.  Doe 

45 

V.  Whitroe 

305 

i'.  Dunbar 

324 

17.  Whittic 

325 

V.  Durnford 

322 

V.  Williams 

325 

r.  Edwards 

305 

1          V.  Wilkinson 

306 

INDEX   TO    CASES   CITED. 


XXV 


Section 

1 

Section 

Doe  V.  Wills 

691 

Drewell  v.  Towler 

544 

V.  Wolley                     310, 

355,  679 

Drumright  v.  Philpot 

61 

V.  Wombwell 

321 

Drury  v.  Strong 

264 

V.  Wright 

626 

V.  Worcester 

662 

V.  Wrightman 

323 

Dry  Dock  Co.  v.  Mcintosh 

129  a 

Dogan  V.  Ashbey 

520 

Duberly  v.  Gunning 

51 

Doggett  V.  Everson 

230  a 

Dublin'i'.  Chadbourn          339, 

669,  672 

Doherty  v.  Clark 

150 

Dubois  V.  Doubleday 

112 

Dole  V.  Hayden 

113 

V.  Keates 

453 

V.  Lyon 

424 

Dubost  V.  Beresford 

414 

V.  Kew  Eng.  Mut.  Mar.  In- 

.  Co.  388 

Ducett  V.  Cunningham 

141 

J)ollfns  V.  Frosch 

195 

Duchess  of  Cleveland  v.  Dashwood     65 

Don  V.  Lippnian 

669 

Ducommun  v.  Ilysinger 

291  a 

Donahoe  v.  Sherl 

597 

Dudley  v.  Follett 

243 

Donaldson  v.  Winter 

672 

V.  Littlefield 

171 

Donnell  v.  Gatchell 

432 

V.  Smith 

221 

Donnelly  v.  Donnelly 

462 

Duff  V.  Budd 

212 

Donolme  v.  AYoodbury 

28 

Duffield  V.  Scott 

116 

Doolittle  V.  Blakesley 

438 

DutFy  V.  Gorman 

115 

Doremus  v.  Howard 

107 

V.  jNIorris 

688 

Dorr  V.  JMunsell 

300 

Dufresne  v.  Hutchinson 

30,  648 

V.  New  Jersey,  &c.  Co. 

215 

Dugan  V.  The  United  States 

166, 169 

V.  Pacific  Ins.  Co. 

401 

Duggan  V.  O'Connor 

565 

Dorrell  v.  Johnson 

622 

Duhamniel  r.  Pickei'ing 

107 

Doty  V.  Wilson 

108 

Duke  V.  Spring 

359 

Doub  V.  Barnes 

141 

Duke  of  Norfolk  v.  Germaine 

47,55 

Dougherty  v.  Western  Bank  of 

Somerset  v.  France 

250 

Georgia 

180 

Dunbar  v.  Jumper 

240 

Douglas  V.  Elkins 

440,  448 

Dunbarton  v.  Franklin 

462 

V.  Forrest 

344,437 

Duncan  v.  Cannan 

460 

V.  McAlister 

2G1 

V.  Findlater 

232  a 

V.  ISloody 

113 

V.  Keiff 

114 

V.  Patrick 

604 

V.  Scott 

165, 172 

V.  Scougall 

401 

V.  Sparrow 

163 

Doune  v.  Estevin  de  Darby 

277 

V.  Spear 

637 

Dover  v.  Rawllngs 

562 

V.  Stalcup 

272 

Dow  V.  Smith 

393 

Duncombe  v.  Daniell 

424 

V.  Sudbury 

117 

Duntbi-d  i'.  Messiter 

114 

Dowd  V.  Wadsworth 

645 

Dunham  v.  Dunham 

40,41 

Dowdale's  case 

361 

V.  Jackson 

603 

Dowden  v.  Fowle 

593 

V.  AVykoff 

561 

Downer  v.  Button 

63 

Dunk  V.  Hunter 

565 

V.  ^Madison 

256 

Dunlap  V.  Buckingham 

279 

Downey  v.  Hicks 

520 

V.  Dunlap 

677 

Downing  v.  Lindsay 

432 

Dunlop  V.  Higgins 

261 

Downs  V.  Skrymsher 

47,  95 

Dunman  v.  Bigg 

421 

Dows  V.  Greene 

65 

Dunn  V.  Body 

104 

V.  Morewood 

533 

V.  Dunn 

54 

Drake  v.  Brander 

26 

V.  Lai-ge 

336 

V.  Drake 

135 

V.  St.  Andrew's  Church 

62 

V.  Hudson 

252 

Durant  v.  Durant                41,  44,  53,  54 

V.  Rogers 

662 

Durell  V.  Mosher 

642 

V.  Shorter 

643 

Durling  v.  Loveland 

675 

V.  Sykes 

64,  582 

Durrant  v.  Friend 

379 

Draper  v.  Arnold 

580 

Duryee  i'.  Dennison 

196 

V.  Fulkes 

647 

Dutton  V.  Poole 

109 

Drew  V.  Drew 

437  1 

V.  Solomonson 

640 

XXVI 


INDEX   TO    CASES   CITED. 


Section 

8e<nioQ 

Button  V.  State 

26 

Edmonds  v.  Buel 

629 

j;.  Woodman 

479,  G84 

V.  Lowe 

205 

Dwiglit  V.  Brewster 

215,  642 

Edmondson  v.  Machell 

273 

573 

Dwinel  v.  Barnard 

662 

Edmunds  v.  Cox 

79 

Dwyer  v.  Bowley 

5G6 

V.  Downes 

440 

Dye  V.  Leatherdale 

622 

Edson  V.  Weston 

135 

Dyke  v.  Aldridge 

584 

Edwards  v.  Astley 

681 

V.  Sweeting 

290 

V.  Beach 
V.  Crock 

253 
5" 

E. 

V.  Footner 

3^6 

V.  Hooper 

642 

644 

Eadie  i>.  Slimmon 

301 

i\  Sharratt 

220 

Eager  v.  Grimwood                  571,  57  7  a 

V.  Stevens 

74 

I!.'  The  Atlas  Ins.  Co. 

249, 377 

V.  Yeates 

608 

Eagle  Bank  v.  Hathaway 

188 

Efner  v.  Shaw 

76 

V.  Chapin 

187,  191 

Ege  V.  Kyle 

478 

V.  Smith 

156 

Egg  V.  Barnett 

527 

Eames  v.  Prentice 

618 

Egleston  v.  Macauly 

262 

V.  Savage 

124 

Eiohar  v.  Kistlar 

579 

Earl  V.  Hall 

232  a 

Eichon  V.  Le  Maitre 

27 

I'.  Raymond 

26 

Ela  V.  Rand 

25 

,  131 

Earl  of  Derby  v.  Taylor 

239 

Elam  V.  Bodger 

421 

Leicester  v.  Walter 

275,  424 

Elden  v.  Keddel 

315 

Earle  v.  Harris 

383 

Electric  Telegraph  Co.  v 

Brett 

493 

V.  Peale 

365 

Eliot  V.  Allen 

277 

V.  Reed 

365 

V.  Eliot 

44 

V.  Rowcroft 

390 

V.  Lawton 

435 

V.  Sawyer                  489 

,  494,  495 

Elkins  V.  Boston  &  M.  R 

R.  Co. 

211 

Easley  v.  Moss 

414 

Ellinger  v.  Crowl 

300 

Eason  v.  Henderson 

36 

Elliott  V.  Ashton 

502 

East  V.  Chapman 

424,  425 

V.  Dudley 

478 

V.  Smith 

186 

V.  Edwards 

124 

East  London  Waterworks  Co. 

V. 

V.  Morgan 

131 

^  Bailey 

62 

V.  Nicklin 

579 

East  Lidia  Co.  v.  Paul 

435 

V.  Swartwout 

121 

123 

V.  Prince 

441,  442 

Ellis  V.  Abrahams 

454 

Easterby  v.  PuUen 

442 

V.  Ellis 

53 

365 

Eastwick  V,  Hugg 

117 

V.  Paige 

359 

615 

Eastwood  V.  Kenyon 

107,  282 

V.  Watson 

484 

Eaton  v.  Bright 

462 

V.  Welch 

243 

244 

V.  Jatjues 

239 

V.  Wild 

523 

V.  Lynde 

640 

Ellison  V.  Bray 

78 

V.  Ogier 

11  b,  599 

Ellsworth  u.  Brewer 

ii:j 

V.  Wliitaker 

11  /; 

V.  Tart 

481 

Ebereoll  v.  Krng 

11  l> 

Ellwood  V.  Monk 

109 

El)i-rt  V.  Ebeit 

69,  411 

Elmore  v.  Naugatuck  R. 

R.  Co. 

210 

ICcch'ston  V.  Petty  al.  Speke 

6  78 

Elsam  V.  Faweett 

66, 

577 

JCckert  ('.  WIls(m 

440 

Elsey  V.  IVIetcalf 

297 

E(k>tein  i;.  Reynolds 

605 

Eltiug  V.  Scott 

396 

Eddy  V.  (Jray 

153 

Elwell  I'.  Chamberlin 

68 

i;.  Smith 

117 

V.  Martin 

108 

Edelen  v.  Hardey 

678 

Elwes  V.  Elwes 

43 

Edge  V.  Pemberton 

655 

El  wood  V.  Bullock 

250 

Edgcrley  v.  Emerson 

11  b 

lOinbrey  v.  Owen 

467 

Etlgcrton  v.  Brackett 

112 

Emei-son  v.  Boville 

684 

V.  Edgerton 

172 

V.  Cutts 

166 

Edie  i>.  The  East  India  Co. 

249,  252 

V.  Murray 

300 

INDEX   TO   CASES   CITED. 


XXVll 


Section  ! 

Section 

Emerson  v.  Propr's  of  Mnot 

244 

Ewing  V.  French 

116 

V.  Thompson 

. 

342 

V.  Peters 

347 

V.  Wliite 

278/1 

Exall  V.  Partridge 

114 

V.  Wiley- 

665 

Eyles  I'.  Faikney 

115, 590 

Emery  V.  Estes 

172 

J^yre  v.  Palsgrave 

98,  389 

V.  Hlldreth 

339 

Ezell  V.  Franklin 

64  a 

Emmerson  v.  Blonder 

65 

V.  Heelis 

61 

F. 

England  v.  Slade 

305, 

565 

English  &  Irish  Ch.  University  In  re 

482 

Fairbank  v.  Phelps 

640 

Ennos  v.  Pratt 

72 

Fairbanks  v.  Blackington 

118 

Epis.  Charit.  Society  v.  Ep.  Ch. 

V.  Stanley 

112 

in  Dedham 

66 

V.  Wilkinson 

240 

Erick  V.  Johnson 

67 

Fairchild  v.  Adams 

69,  78 

Erskine  v.  Davis 

300 

Fairclaim  v.  Shackleton 

318 

V.  Townsend 

330 

Fairlee  v.  Denton 

112 

V.  Olmstead 

615 

Fairlie  v.  Birch 

589 

Erwin  v.  Blake 

141 

Fairman  v.  Ives 

421,  423 

Esselstyn  v.  Weeks 

440 

Faith  V.  Mclntire 

203 

Esson  V.  Tarbell 

661 

Fane  v.  Fane 

524 

Estes  V.  Mansfield 

81 

Fannin  v.  Anderson 

438 

V.  Troy 

660 

Fant  V.  Cathcart 

367 

Esty  V.  Love 

560 

Parish  v.  Reigle 

221 

Etheridge  v.  Binney 

483 

Farlie  v.  Danks 

449 

European  &  Amer.  Steamship 

Co. 

Farmer  v.  Arundel 

123 

V.  Crosskey 

73 

V.  Darling 

453,  454 

Evans  v.  Ascough 

361 

V.  Rand 

190 

V.  Birch 

38 

528 

Farmers'  Bank  v.  Reynolds 

156 

V.  Brande»* 

586 

,  599 

Farmers  and  Mechanics'  Bank 

V. 

V.  Curtis 

483 

Champlain  Transp.  Co.  210 

212,  215 

V.  Eaton                    492 

505 

,508 

Farnham  v.  Brooks 

448 

V.  Evans 

42 

,616 

Farnsworth  v.  Allen 

178 

V.  Gray 

136 

V.  Chase 

251 

V.  Harris 

107 

V.  Garrard 

136 

r.  Hettich 

508 

V.  Storrs 

421 

V.  Huey 

301 

Farnum  v.  Fowle 

179 

V.  Judkins 

605 

V.  Piatt 

658 

V.  Manero 

599 

Farr  v.  Newman 

694 

V.  IMorgan 

462 

V.  Smith 

647 

V.  ]\Iyei-s 

251 

V.  Stevens 

523 

V.  Powis 

31 

Farrant  v.  Olmins 

259 

V.  Stephens 

284 

V.  Thompson 

640 

V.  Vaughan 

243 

Farrar  v.  Ayers 

690 

V.  Verity 

126 

V.  Barton 

635  a 

Eveleigh  v.  Sylvester 

387 

V.  Beswick 

646 

Evelyn  v.  Chichester 

367 

V.  Merrill 

541 

Everett  v.  Coffin 

642 

Farrington  v.  Lee 

445 

V.  Collins 

520 

Farweil  v.  B.  &  W.  Road  Co. 

232  a 

V.  Tindall 

285 

Faugier  v.  Hallet 

393 

Everitt  V.  Everitt 

688  a 

Faulder  v.  Silk 

246,  371 

Everth  V.  Tunns 

389 

Faulkner  v.  Brown 

637 

Ewart  V.  Kerr 

649 

Favenc  v.  Bennett 

536 

V.  Street 

219 

Faw  V.  Roberdeaux 

437 

Ewer  V.  Coxe 

611 

Fawcett  V.  Hall 

327 

V.  Jones 

435 

V.  Jones 

675 

Ewing  V.  Blount 

649 

Fawcus  V.  Sarsfield 

400 

V.  Blowel 

649 

j  Fay  V.  Bradley 

530 

SXVUl 


INDEX   TO   CASES   CITED. 


Fay  V.  Goulding 
V.  Noble 
V.  Prentice 
V.  Taylor 
Fearnley  v.  INIorley 
Featherstonhaugh  v.  Johnston 
Feize  V.  Thompson 
Felch  V.  Taylor 
Feltham  v.  Cartwright 

V.  Terry 
Felton  V.  Dickinson 
Feniings  v.  Jarratt 
Fenn  v.  Grafton 
Fcnner  v.  Duplock 

V.  Lewis 
Fennings  v.  Ld.  Grenville 
Fenton  v.  Reed 
Fen  wick  v.  Floyd 
Ferguson  v.  Cappeau 
V.  Ferguson 
Fergusson  v.  Brent 
Fernald  v.  Chase 
Fero  v.  Ruscoe 
Ferrell  v.  Alder 
Ferrer  v.  Oven 
Ferrers  v.  Costello 
V.  Ferrers 
Ferris  iK  Brown 

V.  Fuller 
Fessenmeyer  v.  Adeock        3  7, 
Fetherley  v.  AVaggoner 
Fetter  v.  Beale 
Field  V.  Holland 
In  re 

V.  Nickerson 
V.  Proprietors 
Fielder  v.  Starkin 
Filby  V.  Miller 
Filliter  v.  Phippard 
Finch  V.  Blount 

V.  Brook 

V.  Giiilley 

V.  :\Iiller 
Fincham  i;.  Edwards 
Findlav  v.  Smith 
Fiiinerty  v.  Tipper 
Fireman's  Ins.  Co.  t"   Cochran 
Fish  V.  C'liapman 

V.  Dodge 
Fisher  v.  Bradford 

V.  Bristow 

V.  Duncan 

V.  Fellows 

r.  .lewett 

V.  Iceland 

V.  McCJirr 

V.  People 


Section 

Section 

14 

Fisher  v.  Pimbley 

78,  79 

481 

w.  Samuda 

136 

474 

V.  Sargent 

251 

347 

V.  Shattuck 

302 

121 

V.  Whoollery 

560 

642 

V.  Willard 

66 

255 

Fiske  V.  New  Eng.  Ins.  Co. 

398 

109 

,  110 

V.  Small 

618 

627 

Fitch  V.  Chandler 

109 

117 

121 

V.  Harrington 

482 

,484 

104 

110 

V.  Hilleary 

445 

343 

V.  Newberry 

208 

471 

V.  Sutton 

28 

,  519 

565 

Fitts  V.  Hall 

368 

65 

Flanders  v.  Colby 

638 

646 

V.  Davis 

360 

460 

Fleetwood  v.  Curly 

417 

316 

Fleming  v.  Alter 

109 

209 

Fleniington  v.  Smithers 

267 

41 

Fletcher  v.  Braddyll 

416 

219 

V.  Dyche 

259 

642 

V.  Webster 

78 

426 

Flewster  v.  Royle 

621 

244 

Flight  V.  Maclean 

160 

70 

V.  Reed 

107 

107 

Flint  V.  Clinton  Co. 

62 

53 

V.  Flemyng 

380 

,382 

625 

Florey  v.  Florey 

689 

325 

Flower  v.  Adam 

473 

112, 

126 

V.  Pedley 

414 

679 

V.  Young 

378 

384 

89 

Floyd  V.  Day 

113 

118 

533 

Flureau  v.  Thornhill 

261 

674 

Fogg  V.  Middlesex,  &c.  Ins.  Co. 

405 

179 

Foley  0.  Ld.  Peterborough 

51 

139 

V.  Mason 

251 

262 

Folger  V.  Hinckley 

561 

141 

Folly  V.  Vantuyl 

297 

253 

Folsom  V.  Belknap,  &c.  Ins.  Cc 

. 

405 

649 

;;.  Manchester 

644 

602, 

603 

V.  ]Mercliants',  &c.  Ins. 

Co. 

382 

412 

V.  jNIussey 

136 

605 

Foot  V.  Knowles 

347 

6  78 

Foote  V.  Silsby 

507 

G51, 

656 

Forbes  i'.  Agawam  Ins.  Co. 

406 

418 

V.  Ai)pleton 

123 

648 

t'.  Ld.  Middleton 

432 

215 

V.  Manuf.  Ins.  Co. 

392 

372 

Forbush  v.  ^Vcstern  Mass.  Ins. 

Co. 

406 

168 

Ford  V.  Ford 

681 

452 

V.  Fotlicrgill 

366 

342 

V.  Jones 

73 

114 

V.  Phillips 

367 

24 

367 

V.  Williams 

141 

200 

Forde  V.  Skinner 

84 

697 

629 

Fordham  v.  Wallis 

438 

373 

Fores  v.  Wilson 

88, 

573 

INDEX   TO   CASES   CITE^ 


XXIX 


Section 

Foreman  v.  Miller  261 

Forney  v.  Hallacher  49,  461 

Forrester  v.  Pigou  396 

Foree  &  Hembling's  case  684 

Forster  v.  Forster  52 

Forsyth  v.  Ganson  352 

V.  Hastings  367 

V.  Wells  642,  649 

Fortune  v.  Buck  672 

Forty  V.  Imber  564 

Forward  v.  Pittard  219 

Fosliay  v.  Ferguson  754 

Foster  v.  Alanson  127 

V.  Bates  339 

V.  Blakelock  347 

V.  Equitable  Ins.  Co.  405 

V.  Gorton  640 

V.  :Mansfield  297 

V.  Pettibone  614 

V.  Pointer  11  <:/ 

V.  Shaw  441 

V.  Stewart  108 

V.  The  Essex  Bank  68 

V.  Tlmrston  115 

V.  United  States  Ins.  Co.         382 

V.  Wilmer  382 

Fouldes  V.  Willoughby  642 

Founes  v.  Ettricke  462 

Fountain  v.  Coke  691 

Fowler  V.  Bott  245  a 

V.  Bush  520 

V.  Down  640 

V.  Gilman  276,  649 

V.  Hunt  439 

V.  Morrill  141 

V.  Sharp  346 

Fowles  V.  Great  Western  R.  Co.        209 

Fox  V.  Evans  694 

V.  Harding  256 

V.  INIarston  684 

V.  Northern  Liberties  621 

V.  Whitney  204 

V.  Widgery  557 

Foxcroft's  case  150 

France  v.  Lucy  191 

Francis  v.  Grover  681 

V.  AVilson  263 

Franklin  v.  IVfiller  136 

V.  Vanderpool  520 

Fire  Ins.  Co.  v.  Findlay     405 

Frankum  v.  E.  of  Falmouth  lie 

Fraunces's  case  243 

Fray  v.  Vowles  141 

Frazer  v.  Berkley  93,  267 

V.  Hopkins  378 

Frazier  v.  Dick  202 

V.  Hyland  530 


Section 

Freary  v.  Cook  250 

Frederick  v.  Lookup  248 

Free  v.  Hawkins  164 

Freeman  v.  Arkell  455 

V.  Birch  212 

V.  Bluett  597 

V.  Boynton  179 

V.  Freeman  681 

V.  Haskins  199 

V.  Howe  561  . 

V.  Kennell  160 

Freer  v.  Peacock  371  a,  372,  689 

Freestone  v.  Butcher  64  a 

French  v.  Bank  of  Columbia  195 

V.  French  295 

V.  Kirk  ^  452 

V.  Marstin  659 

V.  New  78 

V.  Richardson  71,  74,  78 

Frets  V.  Frets  79 

Fricker  v.  Tomlinson  282 

Friend  v.  Eastabrook  246 

V.  Woods  219 

Friesmuth  v.  Agawam,  &c.  Co.  406,  408 

Frink  v.  Lawrence  468 

Frisbie  v.  Earned  523 

Frohock  v.  Pattee  440 

Fromont  v.  Coupland  214 

Frost  V.  Bengough  441 

V.  Dougal  584 

Frothingham  v.  Haley  67 

Frve  V.  Barker  441 

Fuller  V.  Bradley  211 

V.  Hooper  190  a,  195 

V.  Little  603 

?;.  McDonald  190,  196 

V.  Naugatuck  R.  R.  Co.  221 

V.  Rounceville  625 

V.  Tabor  642 

V.  Wilson  68 

FuUerton  v.  Warwick  93 

Fulton  V.  Gr  is  wold  136 

V.  Williams  478 

Ins.  Co.  V.  Milner  251 

Funk  V.  Dillon  649 

V.  Voneida  242 

Furman  v.  Applegate  677  a 

Furneaux  v.  Hutchins  250 

Furness  v.  Cope  195 

Furniss  v.  Ellis  11  a 

Fydell  v.  Clark  523 

Fynch  v.  Lambe  432 


Gabay  v.  Lloyd 
Gabriel  v.  Dresser 


377 
30 


XXX 


iNDEX   TO    CASES    CITED. 


Section 

Gabv  V.  Wilts.  &  Berks.  Canal 

Co.  434 

Gaoje  V.  Gao;e  61 

Gaillard  v.  Smart  141 

Gaines  v.  Ilennen  150 

V.  Relf  462,  463 

Gainsford  );.  Carroll  261 

Gale  V.  Caj)ern  24 

Galena,  &c.  R.  R.  Co.  v.  Fay  222 

&  Chicago  Railw.  v.  Yar- 

wood  222 

Galloway  v.  Bleaden  494 

Galvin  v.  Bacon  561 

Gammon  v.  Everett  19ij 

Gandy  v.  Humphries  '  424 

V.  Jubber  472 

Gansevoort  v.  Williams  478 

Gants  V.  Vinard  426 

Gardiner  v.  Campbell  615 

V.  Cleaveland  113 

V.  Collins  297 

V.  Croasdale  260 

V.  Gardiner  293 

V.  Heartt  230  h 

V.  Jadis  56 

V.  ]\Iadeira  47 

V.  Peerage  case  152 

V.  Slade  421 

V.  Tudor  440 

V.  Webber  431 

Gardner  v.  Field  277,  624 

V.  Gardner  53 

V.  Randolph  455 

Gargrave  v.  Smith  634 

Garnett  v.  Woodcock  178 

Garr  v.  Selden  421 

Garrett  v.  Handley  109 

Garrison  v.  Sandfbrd  242 

Garritt  v.  Sharp  476 

Garside  v.  Trent.  &  Mersey 

XT„..    n-  210 


Nav.  Co. 
Garth  V.  Howard 
(iarvey  v.  Ilibbert 
Gass  V.  Sflii.son 
(iates  V.  F>ayley 
Gates  V.  Bowker 

V.  Butler 

V.  (rates 
Gathercolc  v.  Miall 
(iatliingB  v.  Williams 
Gayetty  r.  Buthune 
(Javier  v.  Wilder 
(iaylord  v.  Van  Loan 
(iaze  V.  Gaze 
(iazvnski  v.  Colbum 


General  Mut.  Ins.  Co.  v.  Sher- 
wood 


64 

298 

533 

634 

11,  413 

430,  475,  55(; 

561 

415 

464 

657 

492,  501  a 

14 

676 

411 


387 


Section 

Gennings  v.  Norton  435 

George  v.  Surrey  677 

V.  Van  Horn  575 

Gerard  v.  Baker  65 

Germantown  Railr.  Co.  v.  Wilt         621" 

Gerrard  v.  O'Reilly  259 

Gerrish  v.  Cummings  277,  649 

V.  Edson  599 

V.  Nason  675 

Gibbens  v.  Cross  684 

Gibbon  V.  Coggon  184,  584 

V.  Featherstonhaugh  527 

Gibbons  v.  McCasland  441 

V.  Pepper  85,  94 

V.  Wilcox  484 

Gibbs  V.  Cannon  186 

V.  Chase  621 

V.  Merrill  24,  133 

Gibson  V.  Chaters  453 

V.  Culver  210 

V.  Farley  358 

V.  Fleming  95 

V.  Grosvenor  440 

V.  Minnet  119 

V.  Wells  655 

V.  Williams  417 

Giddings  v.  Hadajvay  78 

Gidley  v.  Williams  838 

Gidney  v.  Earl  616 

V.  Stone  270 

V.  Williams  142 

Gilbert  v.  Bii-kinsham  255 

V.  Mosier  601 

Gilchrist  v.  Cunningham  118 

Giles  V.  Dyson  347 

V.  Edwards  104 

V.  Fauntleroy  221 

V.  Grover  637 

V.  Harris  607 

Gill  V.  Cole  332,  836 

V.  Kuhn  481 

V.  Logher  142 

Gilleland  ?;.  Martin  278/ 

Gillctt  V.  Maynard  1 24 

V.  Rippon  113,  114 

V.  Treganza  650 

Gillies  V.  Smither  ^         348,  349 

Gillon  V.  Boddington  434 

V.  Wilson  86 

Gilman  v.  Haven  240 

V.  Lowell  275 

Gilmore  v.  Hague  165 

V.  Holt  601 

V.  Newton  642 

V.  Spies  180 

Gilpin  V.  Fowler  421 

V.  Hollinf;eworth  359 


INDEX  TO   CASES   CITED. 


XXXI 


Gilsoi.  e  Stewart 
Ginger  v.  Ginger 
Gisborne  v.  Hart 
Gist  V.  Robinet 
Givens  v.  Briscoe 
V.  Robbins 
Givers  v.  Higgens 
Gladstone  v.  McGowran 
Glasier  v.  Eve 
Glasscott  V.  Day 
Gleason  v.  Clai'k 
V.  Dodd 
V.  Smith 
Glezen  v.  Rood 
Glosco  V.  N.  Y.  &c.  Railw, 
Glossop  V.  Colman 
V.  Jacob 
V.  Poole 
Gloucester  Bank  v.  Salem 
Glover  v.  Black 

V.  Thompson 
Goddard  v.  Cox 

y.  Hodges 
V.  Smith 
Godefroy  v.  Dalton 

V.  Jay 
Godson  V.  Good 

V.  Richards 
Godwin  v.  Thompson 
Gold  V.  Whitcomb 
Goldey  y.  Penn.  Railw. 
Golding  V.  Nias 
Goldshmidt  v.  Whitmore 
Goldsmid  v.  Bromer 
Goldsworthy  v.  Strutt 
Golightly  V.  Ryn 
Good  V.  Cheeseman 
V.  Hill  • 
V.  Lehan 
V.  Mylin 
Goodall  V.  New  Eng.  Fire 

Co. 
Goodell  V.  Raymond 
Goodin  V.  Ferris 
Gooding  V.  Morgan 
Goodland  v.  Blewith 
Goodman  v.  Harvey 
V.  Sayres 
(loodrich  v.  Davis 
V.  Stanley 
V.  Walker 
V.  Warner 
Goodright  v.  Davids 
V.  Glazier 
V.  Gregory 
V.  Moss 
V.  Saul 


Bank 


Ins. 


Section 

Bection 

127 

Goodsell  V.  Myers 

367 

46 

Goodtitle  V.  Baldwin 

303 

71 

V.  Newman 

312 

317 

V.  North 

337 

141 

V.  Otway 

686 

432 

V.  Tombs 

336 

343 

V.  Welford 

691 

570 

V.  Woodward 

323 

597 

Goodwin  i'.  Buzzell 

442,  443 

602,  C05 

V.  Gilbert 

110 

142 

V.  Holbrook 

609 

142 

V.  Morse 

112,  202 

104,  261 

Goodyear  v.  Day 

495 

480 

Goold  V.  Chapin 

210 

222 

Gordon  v.  Buchanan 

377 

478 

V.  Harper                561, 

616,  040 

161 

V.  Little 

219,  377 

594 

V.  Martin 

104 

k        522 

V.  Mass.  Ins.  Co. 

379 

379 

V.  Strange 

520 

165 

Gore  V.  Brazier                    149 

264,  316 

529, 531 

V.  Gibson 

171 

531 

Gorgier  v.  Mieville 

639 

452 

Gorham  v.  Gale 

580 

145 

Gorton  V.  De  Angelis 

454 

142 

Goss  V.  Quinton 

638 

131 

Gouger  v.  Jolly 

216,217 

163 

Gough  V.  Davies 

127 

460 

V.  Gough 

089 

445 

Gould  V.  Banks 

607 

215 

V.  Barratt 

456 

570 

V.  Glass 

662 

388,  390 

V.  Hulme 

412,417 

403 

V.  Lasbury 

24 

258,  259 

V.  Norfolk  Lead  Co. 

63 

644 

V.  Shirley 

440 

31 

V.  Smith 

18 

237 

V.  Sterling 

63 

27 

V.  Weed 

275 

268  a 

V.  White 

528 

Goulding  v.  Davidson 

107 

252 

Governor,  The,  v.  Rector 

460 

74 

Govett  t>.  Radnidge 

208 

434 

Gov.,  &c.  of  Chelsea  Waterworks 

123 

V.  Cowper 

348 

606 

Gowan  V.  Jackson 

483 

172,  639 

Grable  v.  Margrave 

253,  269 

74 

Grafton  Bank  v.  Cox 

195 

411,417 

V.  Moore 

183,  484 

31 

Graham  v.  Barras 

383 

297 

V.  Bennett 

460 

455,457 

V.  Bickham 

258 

325 

V.  Graham 

72 

683 

V.  ]\Ioore 

305 

297 

V.  Peat 

618 

151 

V.  Wigley 

51 

150 

Grainger  v.  Hill 

449,  452 

XXXll 


INDEX   TO    CASES   CITED. 


Section 

Section 

Grand  Bank  v.  Blancliard 

188 

Greenleaf  V.  Cook 

136 

Granger  v.  George     284,  431, 

433,  448, 

Greenough  v.  Rolfe 

78 

G48 

Greenwood  v.  Curtis 

111 

I'.  Granger 

233 

V.  Misdale 

79 

Granite  Bank  v.  Ayers 

180 

V.  Wilton 

236 

Grant  v.  Austen 

119 

Greeves  v.  McAllister 

107 

V.  Button 

143 

Gregory  v.  Bailey 

126 

V.  Duel                      271 

453,457 

V.  Doidge 

305 

V.  Hunt 

161 

V.  Hill 

98.  514 

V.  Norway 

64 

V.  Howard 

78 

V.  Shutter 

486 

V.  Piper 

621 

V.  Thompson 

371 

V.  Williams 

268,  268  b 

V.  Yaughan 

14 

Gregg  V.  Wpnan 

111 

Grantley  v.  Garthwaite 

681 

Grensell  v.  Grindlestone 

441 

Gravenor  v.  Woodhouse 

565 

Gridley  v.  Williams 

444 

Gray  v.  Berrynian 

432 

Griffin  V.  Bixby 

617 

V.  Bond 

545 

V.  Blanford 

544 

V.  Jenks 

330 

V.  Fairbrother 

240 

V.  Palmer 

159 

V.  Parsons 

83,  94 

V.  Russell 

514 

Griffis  V.  Sellers 

457 

V.  The  Portland  Bank 

68,  261 

Griffith  V.  Goodhand 

236 

V.  Wass                        Ml 

330,  518 

V.  Hodges 

605 

Gray's  case 

544,  568 

V.  Lee 

213 

Grayson  v.  Atkinson 

676 

V.  Lewis 

421 

Grazebrook  v.  Davis 

79 

V.  Willing 

37 

Jreat  North  R.  Co.  v.  Shepherd       221 

Griffiths  V.  Teetgen 

573 

Pond  Co.  V.  Buzzell 

245 

Grimaldi  v.  White 

136 

Greeley  v.  "Wyeth 

480 

Grinnel  v.  Phillips 

580,  621 

Greely  v.  Bartlett 

118 

V.  Wells 

573,  575,  579 

V.  Dow 

201 

Grissell  v.  Robinson 

114 

V.  Hunt 

177 

Griswold  v.  Plumb 

644 

V.  Thurston 

187 

Grose  v.  West 

616 

V.  Tremont  Ins.  Co. 

392 

Gross  V.  Zorger 

78 

Green  v.  Bartrain 

98 

Grosvenor  v.  Danforth 

141 

V.  Blddle 

549 

Groton  V.  Dalheim 

177,  195 

V.  Brown 

135 

Grymes  v.  Shack 

220 

V.  Button 

449 

Guerrant  v.  Tinder 

457 

V.  Canaan 

662 

Guest  V.  Elwes 

11  d 

V.  Chapman 

480 

Guild  V.  Hale 

431 

V.  Chelsea 

554 

Guille  V.  Swan 

224,  622 

(or  Dean)  v.  Crane 

342 

Guion  V.  MeCulloch 

25 

V.  Dunn 

645 

Gullet  V.  Lewis 

141 

V.  Ehnslie 

387 

Gulliver  v.  Cosens 

120 

V.  Goddard 

98 

Gummer  v.  Adams 

300 

V.  Hewitt 

121 

Gunter  v.  Astor 

253 

V.  Jackson 

138 

V.  Clayton 

684 

V.  Kemp 

556 

Gunton  v.  Nurse 

644 

V.  Liter 

554 

Gurney  v.  Gurney 

150 

V.  Lowell 

584,  587 

Gutteridge  v.  Munyard 

245  a 

V.  IMerch.  Ins.  Co. 

397 

Guy  V.  Kitchiner 

95 

V.  Miller 

74 

V.  Livesey 

88 

Greene  v.  Pacific  Mutual  Insurance 

V.  Rand 

317 

Company 

388 

Guyon  v.  Serrell 

507 

Greenfield  Bank  v.  Leavitt 

276,  642, 

Guyther  v.  Pettijohn 

646 

649 

Gwinn  V.  Whittaker 

350,  533 

Greening  v.  Wilkinson 

276, 649 

Gwylliin  v.  Scholey 

586 

Greenland  v.  Chaplin 

232  a 

Gwynn  v.  Homan 

662 

INDEX   TO    CASES   CITED. 


xxxm 


Haeket  v.  Martin 
Hadden  v.  Mills 
Haddow  v.  Parry 
Haddrick  v.  Heslop 
Hadley  v.  Baxendale 
Hadlock  v.  Losee 
Haggett  V.  Welsh 
Hague  V.  French 
Hahn  v.  Corbett 
Haigh  V.  De  la  Cour 

V.  Haigh 
Haight  V.  Holley 
Haile  v.  Lillie 
Haines  v.  Haines 
Hale  V.  Handy 
V.  Lawrence 


Section 

20 

456 

380 

453,  454 

256 

445 

79 

12 

219 

893 

81 

27 

363 

681 

104 

630 

V.  The  New  Jersey  Steam 

Nav.  Co.  219 

V.  Washington  Ins.  Co.  387 

Hall  V.  Bainbridge  297 

V.  Bumstead  357 

V.  Butler  306 

V.  Conn.  R.  Steamboat  253 

V.  Davis  98 

V.  Dean  242 

V.  Doe  329 

V.  Fearnley  85,  94,  270 

V.  Featherstone  172 

V.  Gittings  331 

V.  Hale  207 

V.  Hall  6  76 

V.  Huse  -  159 

V.  Marston  109,  119 

V.  Palmer  297 

V.  Smith  25 

V.  Stevens  556 

V.  Suydam  453,  454,  459 

V.  Swansea  121 

V.  Thayer  435 

Halifax  V.  Lye  164 

Hallet  V.  Collins  460 

Ualliday  v.  :\kDougall  183,  483 

V.  Ward  441 

Hallock  V.  Miller  420 

Hallowell  and  Augusta  Bank  v. 

Howard  601 

Halsey  v.  Whitney  297 

V.  Woodruff  277 

Halsevs  r.  Hurd  261 

Hambly  v.  Trott  108 

Hamer  v.  JMcFarlin  424 

V.  Eavmond  470 

Hamilton  v.  Cutts  149,  244 

V.  Marsden  305 

V.  Starkweather  112 

V.  Taylor  305 

VOL.   II  C 


Hamlet  v.  Richardson 

Section 
123 

Hammersly  v.  Knowlys 
Hammerton  v.  Hammerton 

529 

41 

Hammon  v.  Huntley 

352 

Hammond  v.  Dufi-ene 

195 

V.  Mich.  State  Bank          59 

V.  Smith 

440 

Hanbury  v.  Ella 
Hancock  v.  Cook 

11,  11  d 
444,  447 

V.  Southall 

621 

V.  Wentworth 

660 

V.  AVinter 

414 

Hand  cock  v.  Baker 

99 

Handley  v.  Rankin 

296 

Hands  v.  Slaney 
Handy  v.  James 
Haney  i\  Townsend 

365 
677 
226 

Hankey  v.  Wilson 

165 

Hankinson  v.  Bilby 

417 

Hanmer  v.  Wilsey 
Hannam  v.  Mockett 

635  a 
231 

Hannen  v.  Edes 

95 

Hannum  v.  Belchertown 

660,  662 

Hanover  v.  Turner 

108 

Hansard  v.  Robinson 

156 

Hanson  v.  Buckner 

264 

Hantz  V.  Sealey 

460 

Harcoiirt  v.  Ramsbottom 

79 

Harden  ;;.  Gordon 

128 

Harding  v.  Brooks 

426 

V.  Carter 

65 

V.  Davies 

603 

V.  Greening 

416 

V.  Stokes 

287 

Hardingham  v.  Allen 

119 

Hardwick  v.  Blanchard 

203 

Hardy  v.  Hai-dy 
V.  Martin 

672 
258 

V.  Reed 

640 

Hare  v.  Cator 

239,  241 

V.  Horton 

297 

V.  Pearson 

642 

V.  Travis 

382 

Hargrave  v.  Dusenbury 
V.  Hargrave 

523 
150 

V.  Le  Breton 

419 

Harker  v.  Bii-kbeck 

168 

V.  Brink 

20 

V.  Whitaker 

35 

Harlan  v.  Harlan 

561 

Harlow  v.  Thomas 

24? 

Harman  v.  Claiborne 

440 

V.  Harman 

462 

V.  Rogers 

665 

V.  Vaux 

391 

V.  Wright 

300 

Harmer  v.  Bell 

26 

XXXIV 


INDEX  TO   CASES   CITED. 


Harnier  v.  Killing 
Harmony  v.  Binbam 
Harper  v.  Charlesworth 
I'.  Hampton 
V.  Hough 
V.  Lufl'kin 
V.  Williamson 
Harrington  v.  Payne 
Harris  v.  Butler 
V.  Clap 
i;.  Cook 
V.  Costar 
V.  Dennis 
V.  Eagle  Fire  Co. 
V.  Johnston 
V.  Jones 
t'.  Mantle 
t'.  Mitchell 
V.  Nicholas 
V.  Norton 
V.  Oke 
V.  Osbourn 
V.  Packwood 
I'.  Saunders 
V.  Thompson 
V.  Tyson 
V.  Wall 
Harrison  v.  Barnby 

V.  Bevington 
V.  Bush 
V.  Elwin 
V.  Fane 
V.  Fitzhenry 
V.  Harrison  261, 

V.  Jackson 
V.  Johnston 
V.  ^lo  Henry 
V.  Nixon 

V.  Phillips  Academy 
V.  Rowan 
V.  Ruscoe 
V.  Southampton 
i;.  Wright 
Harrison's  case 
Harrod  i>.  Benton 
Hart  V.  Allen 
r.  Avrcs 
V.  BuUer 
V.  Crow 
V.  Frame 
V.  Horn 
V.  Prater 
f.  Sattley 
Hartford  Bank  v.  Hart 
Hartley  v.  Herring 

V.  Wharton 
Hartman  v.  Keystone  Ins.  Co. 


Section 

Section 

367 

Hartness  v.  Thompson 

133 

121 

Hartranft  v.  Hesser 

419 

663 

Harvard  College  v.  Gore 

339 

28 

Harvey  v.  Brydges 

'^22,  623 

78 

V.  Epes                    64^ 

642,  648 

88,  573 

v.  Tower 

172 

139 

V.  Watson 

51 

642 

Harwood  v.  Goodright 

581 

573 

V.  Smethurst 

561 

263 

Hasbrouck  v.  Tappen 

256,  259 

625 

Hasser  v.  W^allis 

120 

221 

Hastings  v.  Crunkleton 

656 

432 

V.  Shorley 

606 

407 

Hatch  V.  Dennis 

200 

523 

V.  Dickinson 

156 

245  a 

V.  Foster 

481 

237 

V.  Hatch 

297 

73 

V.  Spofford 

26 

251 

V.  White 

524 

297 

Hatfield  v.  Thorp 

691 

103 

Hathaway  v.  Trenton,  &c.  Ins. 

Co.    409 

142 

Hathorn  v.  King 

691 

218 

Haughton  v.  Ewbank 

66 

297,  642 

Haussknecht  v.  Claypool 

499 

421 

Havard  v.  Davis 

681 

301 

Haven  v.  Foster 

123 

367 

V.  Winnisimmet  Co. 

73 

566 

Havens  v.  Harttbrd  &  N  H.  B 

.  Co.  226 

414 

Hawes  V.  Tillinghast 

■481 

421 

V.  W}-att 

687 

674,  677 

Hawkes  v.  Hawkes 

681 

365 

V.  Salter 

193 

•       195 

Hawkins  v.  Cooper 

220,  473 

461,  677 

V.  Grimes                   688  a,  689 

61 

V.  Hoffman            21<e 

221,  642 

533 

V.  Plomer 

589,  599 

67 

V.  Ramsbottom 

133 

C71 

V.  Rutt 

625 

297 

Hawley  v.  Foote 

31 

672 

Hay  V.  Brown 

77 

186 

V.  Graham 

256 

461 

V.  Ousterout 

607 

257 

Haycraft  v.  Creasy 

230  a 

688 

Hayden  v.  Johnson 

440 

593 

Haydon  v.  Shed 

622 

219 

V.  Williams 

440 

112 

Playdon's  case 

277 

523 

Hayes  v.  Warren 

114 

411 

V.  West.  Railroad  Co. 

232  a 

144 

Haynes  v.  Leland 

424 

670 

V.  Morgan 

11  b 

365 

V.  Sinclair 

577,  579 

212 

Haynie  v.  Waring  &  Co. 

212 

193 

Hays  V.  Younglove 

467 

420 

Haythorn  v.  Lawson 

420 

367 

Hayward  v.  Hague 

608 

409 

V.  Leonard 

136 

INDEX   TO   CASES   CITED. 


XXXV 


Section 


Hayward  v.  New  England  Mutual 

Ins.  Co. 

406 

Hazard  v.  Loring 

603 

V.  Treadwell 

65 

Hazeltine  v.  AValker 

11  a 

Hazen  v.  Boston,  &c.  K.  R. 

616 

Head  v.  Head 

150 

Headlam  v.  Headley 

616 

Headley  v.  Mildmay 

277 

Heald  v.  Carey 

642 

V.  Davis 

518 

527 

Heard  v.  Bowers 

236 

Hearle  v.  Hicks 

681 

Hearn  v.  Kielil 

31 

Heath  v.  Hubbard 

646 

V.  Knapp 

331 

556 

V.  Sampson 

172 

V.  Tenney 

71 

V.  Unwin 

496 

506 

V.  West 

614 

V.  AVhidden 

240 

V.  Williams 

618 

Heathcote  v.  Crookshanks 

31 

519 

Hebden  v.  Hartsink 

520 

Heckscher  v.  McCrea 

216  a 

Hedge  v.  Drew 

297 

Hedgiey  v.  Holt 

365 

Heeney  v.  Heeney 

261 

Heifner  v.  Heffner 

463 

Hetreman  v.  Western  E.  R. 

222 

Hellings  v.  Shaw 

443 

Helmsley  v.  Loader 

158 

159 

Helsby  v.  Meai-s 

214 

,  218 

Helsham  i'.  Blackwood 

418 

Helyar  v.  Helyar 

681 

Heinenway  v.  Smith 

103 

Heminway  v.  Saxon 

273 

Heinmenway  v.  Towner 

150 

Hemming  v.  Parry 

11  d 

Hemmings  v.  Gasson 

419 

Ht-mmingway  v.  Fernandez 

240 

Hemphill  v.  Boston 

662 

V.  McClimans 

431 

Henderson  v.  Adams 

71 

V.  Broomhead 

421 

V.  Eason 

36 

V.  Wild 

480 

Henfrey  v.  Henfrey 

681 

Henniker  i'.  Wigg 

533 

Henning  v.  Withers 

264 

Henry  o.  Brown 

13 

V.  Goldney 

26 

V.  Jones 

179 

V.  Peters 

440 

V.  Raiman 

601 

Hensley  v.  Force 

291  a 

Henslow  v.  Faucett 

287 

Section 

Henwood  v.  Oliver 

605 

Henzley  v.  Force 

280 

Hepburn  v.  Auld 

605 

V.  Sewall 

276 

Heme  v.  Bembow 

655 

Herrick  v.  Bennet 

16 

V.  Lapham 

420 

V.  Whitney 

164 

,206 

Herring  v.  Policy 

66 

Hersfield  v.  Adams 

211 

Hervey  v.  Hervey 

462 

Heslop  V.  Chapman 

454 

0.  Metcalf 

142 

Hess  V.  Cole 

141 

Hesseltine  v.  Stockwell 

642 

Hetfield  v.  Central  Railw. 

633 

Hetherington  v.  Kemp 

193 

Hewes  v.  Parkman 

642 

648 

Hewins  v.  Smith 

660 

661 

Hewitt  V.  Thompson 

195 

Hewlett  V.  Cruchley 

459 

Hewlins  v.  Shippam 

631 

Heyden  v.  Thompson 

172 

Heyes  v.  Heseltine 

14 

Heyiin  v.  Adamson 

176 

V.  Hastings 

342 

Heymen  v.  Parish 

387 

390 

Heyward  v,  Lomax 

533 

Hibbert  v.  Pigon 

384 

Hick  V.  Keats 

112 

Hickey  v.  Hinsdale 

560 

Hickley  v.  Heyter 

347 

348 

Hickman  v.  Walker 

342 

Hickok  V.  Buck 

637 

Hickox  V.  Xaugatuck  R.  R. 

Co. 

221 

Hicks  V.  Bingham 

533 

V.  Cochran 

462 

Higbee  v.  Rice 

23,  555 

556 

Higgins  V.  Livermore 

249 

V.  Whitney 

635  a 

Higginson  v.  Dall 

379 

V.  York 

622 

Higham  v.  Baddely 

605 

V.  Rabbett 

659 

Highmore  v.  Primrose 

126 

Hight  V.  Wilson 

674 

,677 

Hill  V.  Crosby 

471 

V.  Davis 

108 

V.  Featherstonhaugh 

143 

V.  Manchester  Waterw 

Co. 

483 

V.  Morey 

625 

V.  Salt 

11  d 

V.  Scales 

296 

V.  Thompson 

494 

V.  Warren 

473 

V.  White 

131 

V.  Wright 

666 

XXX  VI 


INDEX   TO   CASES    CITED 


Section 

Hilliard  v.  Cox  338 

V.  Richardson  232  h 

Hillier  v.  The  Alleghany  Ins.  Co.      405 

Hills  V.  Bannister  136 

Hilt  V.  Campbell  209 

Hilton  V.  Burley  135 

V.  E.  of  Granville  250 

Hinckley  v.  Fowle  118 

Hinde  v.  Whitehouse  638 

Hindle  v.  Blades  586 

Hines  v.  Kiunison  226 

Hingham  v.  Sprague  614 

Hinsdale  v.  Bank  of  Orange  156 

Hinton  V.  Heather  455 

Hiscocks  V.  Jones  591 

Hitchcock  V.  Humphrey  186,  186  a 

V.  Harringtoi  330 

V.  North  458 

V.  Whitney  253 

Hitchen  v.  Teale  86,  624 

Hitchin  V.  Campbell  108 

Hix  V.  Whittemore  371 

Hoar  V.  Clute  521 

V.  Wood  421 

Hoare  v.  Allen  56 

Hobart  v.  Norton  382 

Hobbs  V.  Lowell  656 

Hoby  V.  Built  142 

Hock  V.  Hock  694 

Hocking  I'.  Cooke  15 

Hodgdon  v.  Dexter  219 

Hodges  V.  Green  687 

V.  Hodges  74,  472 

V.  The  State  414 

V.  Windham  51,  56 

Hodgkinson  v.  Marsden  289 

Hodgman  v.  Smith  481 

Hodgskin  v.  Queensborough  243 

Hodgson  V.  Anderson  518 

Hodsall  V.  Stallbrass  263  b 

Hodsden'r.  Harridge  36 

V.  Llovd  684 

Hodsdon  v.  Wilkins  115 

llolfman  i'.  Pitt  316 

I'.  Savage  665 

V.  West  Ins.  Co.  408 

HofTnagle  v.  Lcavitt  11  & 

Hogan  V.  Grosvenor  675 

Hogencamp  r.  Ackerman  280 

Hogg  V.  Charlton  26 

V,  Emerson  490 

V.  Orgill  484 

Ilolbrook  I'.  Brown  379 

r.  Dow  104 

Holder  r.  Coatcs  G17 

Holding  V.  Liverpool  Gas  Co.  267 

Uolford  I'.  Hatch  239 


Section 

Holford  V.  Wilson 

195 

Holker  v.  Parker 

141 

Holland  v.  Bird 

46 

V.  Holland 

226 

V.  Makepeace 

200 

Holliday  v.  Camsell 

646 

Hollingsworth  v.  Brodrick 

400 

Hollis  V.  Pond 

296 

V.  Smith 

338 

HoUister  v.  Hollister 

54 

V.  Newlen 

215 

Holloway  v.  Abell                571, 

573 

578 

V.  Turner 

268 

Holman  v.  Borough 

13 

V.  Walden 

21 

Holmes  v.  Clifton 

593 

V.  D'Camp               127, 

128 

520 

V.  Doane 

613 

615 

V.  Holmes 

601 

V.  Keri'ison 

435 

V.  Old  Colony  R.  R.  482 

V.  Peck  144 

V.  Porter  481 

V.  Seeley  627,  658 

V.  Wilson  622 

Holton  V.  Button  330 

Holyday  v.  Oxenbridge  99 

Holyoke  v.  Haskins  317 

Homer  v.  Dorr  249 

V.  Fish  448 

V.  Wood  480 

Hone  V.  Mutual  Ins.  Co.  251 

Hood  V.  New  Haven,  &c.  R.  R.  Co.  222 

V.  New  York  &  N.  H.  R.  R. 

Co.  210 

Hooe  V.  Oxley  66 

Hook  V.  Philbrick  78 

Hoole  V.  Attorney- General  662 

Hooper  r.  Williams  160 

Hopcroft  V.  Keyes  5G5 

Hope  V.  Harman  297 

Hopewell  v.  Am  well  296 
Hopkins  v.  Atlantic  &  St.  Lawrence 

Railway  254,  268  b 

V.  Hopkins  560 

V.  Liswell  190 

V.  Richardson  124 

V.  Smith  426,  483 

V.  Young  236 

Hopley  V-  Dufresne  195 

Hore  V.  Whitmore  383 

Horn  V.  Boon  454 

V.  Noel  463 

Ilornketh  v.  Barr  673,  576 

Iloi-sefall  v.  Testar  300 

Ilorton  V.  Sayer  81 

lioshauer  v.  Iloshauer  675,  688 


INDEX   TO    CASES   CITED. 


XXXVIJ 


Hotchkiss  V.  Greenwood 
V.  Lathrop 
V.  Le  Roy 
V.  McVickar 
V.  Oliphant 
Hothara  V.  East  India  Co. 
Hough  V.  Birge 

V.  Patrick 
Houghtaling  v.  Kelderliouse 
Houghton  V.  Houghton 
Housatonic  Bank  v.  Laflln 
Househill  V.  Neilson 
Houstman  v.  Thornton 
Howard  v.  Howard 

V.  ]\Iiner  609, 

V.  Newton 
V.  Sexton 
V.  Withaiu 
Howard  Ins.  Co.  v.  Branier 
Howe  V.  Freeman 
V.  INIemll 
V.  Perry 
V.  Saunders 
^Dwell  V.  King 

V.  Richards 
V.  Young 
Howes  V.  Martin 
Howland  v.  Coffin 
Hoxie  i;.  Pacific  Mut.  Ins.  Co. 
Huband  v.  Grattan 
Hubbard  v.  Belden 

V.  Chenango  Bank 
V.  Cummings 
V.  Little 
V.  Norton 
Hubbell  V.  Bissell 

V.  Rochester 
Hubbersty  v.  Ward 
Hubbly  V.  Brown 
Huber  V.  Zimmerman 
Huble  V.  Clark 
Huckle  V.  Money 
Hucks  V.  Thornton 
Hudson  V.  Johnson 
V.  Robinson 
V.  Swift 
Hughes  V.  HoUingsworth 
V.  Large 
V.  Parks 
V.  Thomas 
Hulett  V.  Soullard 
Hull  V.  Hull 
Hulle  V.  Heightman 
Hume  V.  Oldacre 

V.  Peploe 
Humes  v.  McFarlane 
Humphrey  v.  Moxon 


Section 

Section 

492 

Humphreys  v.  Jones 

440 

275 

Humphries  v.  Parker 

425 

139 

Hunt  V.  Bennett 

254,  421 

640 

V.  Carlisle 

251 

275 

V.  Chambers 

668 

404 

V.  Haskell 

649 

135 

V.  Hunt 

554 

554 

V.  Jones 

420 

426 

V.  Rich 

616 

72 

V.  Rousmaniere's  Adm'r 

68  a 

189 

V.  Silk 

124 

501  a 

V.  Spaulding 

431 

386 

V.  Stevens 

338 

330 

V.  The  Cleveland 

219 

610,611 

Hunter  v.  Agnew 

367 

86 

V.  Britts 

333,  335 

418 

V.  Cochran 

331 

136 

V.  French 

452 

405 

V.  Hudson  River  Iron  & 

561 

Machine  Co. 

64,  64  a 

163 

V.  Bang 

288, 590 

275 

Huntington  v.  Brinkerhoff 

432 

444 

V.  Rumnill 

146 

471 

V.  Whaley 

430 

300,  404 

Huntley  v.  Bacon 

272 

433 

V.  Bulwer 

143 

113 

Hurd  V.  Darling 

646 

521 

V.  Fletcher 

243 

400 

Hurst  V.  Parker 

431,  446 

259 

V.  Rodney 

240 

104 

Huscombe  v.  Standing 

302 

604 

Huse  V.  Alexander 

519 

367 

Hutchins  v.  Adams 

106,  260 

554 

V.  Nichols 

201 

242 

Hutchinson  v.  Stiles 

357 

78 

V.  York,  &c.  R.  R 

.  Co.   232 

614 

Huxham  v.  Smith 

605 

64 

Huxley  v.  Berg 

272 

204 

Hyde  v.  Bruce 

406 

64 

V.  Cookson 

649 

688  a 

V.  Jamaica 

658 

253 

V.  Louis.  State  Ins.  Co. 

392 

390 

V.  Stone 

647 

141,  518 

V.  Trent  &  Mersey  Nav. 

Co.   210, 

24 

219 

124 

Hylton  V.  Brown 

337 

141 
171 
296 

Hynds  v.  Schenectady  Ins.  Co 

408 

434 

L 

113 

48 

Ide  V.  Passumpsic  &  Conn.  R.  R.  Co.  118 

103,  104 

III.  Cent.  Railw  v  Copeland 

221 

229,  624 

,  Hot  V.  Wilkes 

473 

607 

Ilott  V.  Genge 

676 

686 

Ilsley  V.  Jewett 

441,  520 

203 

V.  Stubbs 

561 

XXXVIU 


INDEX   TO   CASES   CITED. 


Section 

Section 

Tmason  v.  Cope 

98 

Jackson  v.  Carpenter 

367 

Incledon  v.  Berry 

454 

455 

V.  Chase 

329 

Ingalls  V.  Bills 

222 

V.  Cliristman 

810,677 

V.  Bulkley 

562 

645 

V.  Combs 

334 

V.  Dennett 

113 

V,  Cooley 

306 

IngersoU  v.  Jackson 

244 

V.  Creal 

305 

V.  Jones 

573, 

579 

V.  Cuerden 

805,  325 

Inglebriglit  v.  Hammond 

251 

V.  Davis 

305 

Ingliss  V.  Haigh 

447 

V.  De  Waltz 

305 

Ingraham  v.  Grigg 

297 

V.  Deyo 

825 

V.  Martin 

561 

V.  Fuller 

329 

Ingram  v.  Lawson 

268  &, 

420 

V.  Graham 

305 

V.  Wyatts 

675 

V.  Green 

329 

Innis  V.  Crawford 

217 

V.  Hale 

561 

In  re 

147 

V.  Harrington 

331 

Insane  Hospital  v.  Higgms 

279 

V.  Hai'sen 

305 

Ireland  v.  Coulter 

354 

V.  Hinman 

305 

V.  Iliggins 

620 

V.  Langhead 

329 

V.  Johnson 

208,  209, 

228 

V.  Larroway 

310 

Ireson  v.  Pearman 

144, 

149 

V.  Legrange 

672,  694 

Irish  V.  Cloyes 

635  a 

V.  Loomis 

337 

V.  Smith 

680, 

689 

V.  Marsh 

244 

Irvine  v.  Ilanlin 

37 

V.  Mass.  Mut.  Ins. 

Co.            405 

Irving  V.  IManning 

392 

V.  McLeod 

325 

V.  Wilson 

121 

V.  Norris 

395 

Irwin  V.  Dearman 

88,  573 

579 

V.  Parkhurst 

325,  831 

Iseley  v.  Lovejoy 

414 

V.  Perkins 

800 

Isherwood  v.  Whitmore 

611  a 

V.  Randall 

833 

Israel  v.  Argent 

363 

V.  Reynolds 

805 

V.  Benjamin 

159 

V.  Richards 

195 

V.  Brooks 

455 

,458 

V.  Rosenvelt 

356 

V.  Clark 

221 

V.  Rowan 

325 

V.  Rodon 

684 

V.  Sample 

317,  325 

Isteed  V.  Stonely 

240 

V.  Scissam 

305 

Ives  V.  Van  Epps 

136 

V.  Shillito 

659 

Ivey  V.  Young 

11  e 

V.  Sidney 

317 

Izett  V.  Mountain 

220 

V.  Sisson 
V.  Smithson 
V.  Stackhouse 

331 

230 

329,  330 

J. 

V.  Stewart 
V.  Styles 

305 
305 

Jack  V.  Martin 

564 

V.  Thompson 

672,  679 

Jackaud  v.  French 

480 

V.  Van  Dusen 

674,  677 

Jacks  V.  Henderson 

684 

V.  Vandyke 

694 

V.  Stiinpson 

454 

V.  Vickory 

694 

Jackson  v.  Auihler 

78 

V.  Vosburg 

805,  308 

V.  Anderson 

642 

V.  AValker 

305 

V.  Ayr(>s 

305 

V.  Warwick 

186 

V.  Bartlett 

141 

518 

V.  Wheeler 

825 

V.  Bftts 

680,  681 

694 

V.  Wliitfbrd 

395 

V.  Bodlc 

29  7 

V.  Wilsey 

825 

V.  Blansham 

679 

V.  Winne 

460 

V.  Bradt 

817 

Jacob  I 

.  Hungate 

172 

V.  Brownson 

656 

Jacobs 

V.  Htnnphrey 

583 

r.  Bull 

457 

V.  Pollard 

115 

V.  Burleigh 

453 

Jacoby 

V.  Laussatt 

265,  644 

V.  Bush 

805 

Jalliray 

V.  Frebain 

133 

INDEX   TO    CASES   CITED. 


XXXIX 


Section 

Section 

James  v.  Biddmgton 

40,  55 

Johnson  v.  Mc  Cruder 

64 

V.  Browne 

39 

V.  Neale 

561,562 

V.  Campbell 

85 

V.  Peck 

230  a 

V.  Cohen 

683 

V.  Perry 

268  a,  6 

V.  David 

31 

V.  Smith 

284,  431 

V.  Hackley 

352 

V.  Spiller 

108 

V.  Marvin 

683 

V.  Stark 

112 

V.  Phelps 

455 

V.  Stone 

587 

V.  Roberts 

301 

V.  Sumner 

265, 649 

Jansen  v.  Osti-auder 

280 

V.  Thoroughgood 

568 

Janson  v.  Brown 

630 

V.  Ward 

66,  380 

Jarvis  v.  Dean 

539 

660 

V.  Weed 

519,  523 

Jayne  v.  Price 

311 

V.  Weedman 

253 

Jeiferson  v.  Jefferson 

656 

V.  Wollyer 

562 

Jeffrey  v.  Bastard 

586 

Johnston  v.  Brannan 

28 

Jeffreys  v.  Gurr 

144 

V.  Columbian  Ins 

Co.          394 

Jei'ts  V.  York 

123 

V.  Johnston 

684 

Jenckes  v.  Smithfield 

689 

Johnstone  v.  Sutton 

453,  454 

Jenkins  v.  Hopkins 

33 

242 

Jollie  V.  Jaques 

514 

V.  Phillips 

11  d 

Jones  V.  Brinley 

112,  118 

V.  Plume 

347 

V.  Brooke 

203 

V.  Pritchard 

309 

V.  Brown 

88 

V.  Troutman 

584 

V.  Boyce 

221 

V.  Tucker 

108 

114 

V.  Clayton 

592 

Jenks  V.  Coleman 

222  a 

V.  Conoway 

448 

V.  Phelps 

431 

V.  Darch 

166 

Jenner  v.  Joliffe 

642 

V.  Edwards 

191 

Jennings  v.  Camp 

103 

104 

V.  Fales 

188 

V.  Maddox 

272 

V.  Fort 

644 

V.  Major 

605 

V.  GIvin 

449,  452 

V.  Randall 

368 

V.  Green 

259 

Jerritt  v.  Ware 

430 

V.  Hart 

645 

Jervis  v.  Sydney 

582 

V.  Hoar 

108,  120 

Jesser  v.  Gifford 

469 

V.  Hunter 

485 

Jeune  v.  Ward 

362 

363 

r.  Hill 

655 

Jevens  v.  Harridge 

239 

V.  Insurance  Co. 

400 

Jew  V.  Wood 

306 

V.  Kennedy 

520 

Jewell  V.  Schroeppel 

104 

V.  Kitchen 

95 

Jewett  V.  Davis 

27 

V.  Lewis 

435 

V.  Foster 

626 

V.  Mars 

158 

Joannes,  Count  v.  Bennett 

421 

V.  Marsh 

324 

John  V.  Currie 

11  e 

V.  Morgan 

159,  160 

Johns  V.  Arthur 

601 

V.  Moore 

342,  440 

V.  Dodsworth 

277 

V.  Nichols 

449 

V.  Stevens 

539 

V.  Perchard 

580 

Johnson  v.  Alston 

142 

V.  Pitcher 

219 

V.  Browning 

450 

457 

V.  Ryde 

522 

V.  Courts 

271 

V.  Ryder 

122 

V.  Farwell 

431 

V.  Savage 

196 

V.  Hudson 

415 

V.  Smith 

162 

V.  Johnson             153, 

520 

676 

V.  Stevens 

138,412,417 

V.  Jones 

566 

V.  Thompson 

55,  56 

V.  Kennison 

205 

V.  Turnour 

165 

V.  Knowlton 

78 

V.  Voorhees 

215,  221 

V.  Lawson 

462 

V.  Wood 

582 

V.  Lewis 

599 

V.  Wylie 

82 

V.  Mason                 63 

158 

565 

V.  Yates 

480 

Xi 


INDEX   TO   CASES   CITED. 


Section 

Jones  Man.  Co.  v.  Manufacturers' 

Mut.  Ins.  Co.  408 

Jordain  v.  Wilson  240 

Jordan  v.  Fall  River  Railroad  221 

V.  Wilkins  36,  37 

Jory  V.  Orchard  322 

Joyner  r.  Egremont  121 

Judah  V.  Kemp  645 

Judd  V.  Fox  560 

Judson  V.  Adams  481 

V.  Lake  672 

V.  Western  R.  R.  Co.  210 

Juxon  V.  Thornhill  75 


K. 


Kaley  w.  Shed                  272,  276,  635  a 

Kampshall  v.  Goodman  440,  441 

Kane  v.  Sanger  240,  293 

Kannon  v.  McMulIen  142 

Kavanagh  v.  Gudge  627 

Kay  V.  Duchesse  de  Pienne  130 

V.  Marshall  493 

Kaye  v.  Waghorne  28 

Keaggy  v.  Hite  649 

Keaii  L\  McLaughlin  418 
Kearney  v.  Boston  &  Worcester 

R.  R.  Corp.  278  h 
V.  Farrell  466 
V.  King  13,  15 
Kearslake  v.  Morgan  30 
Keats  V.  Keats  53 
Keay  v.  Goodwin  615 
Keek's  case  104 
Keeble  v.  Hickringill  254,  622 
Keech  V.  Hall  329 
Keen  v.  Baltshore  81,  126 
V.  Ruff  417 
Keene  u.  Lizardi  272 
V.  Thompson  124 
Keep  V.  Goodrich  72 
Keeton  v.  Keeton  437 
Keezcler  v.  Thompson  254 
Keigwin  v.  Kcigwin  676 
Keith  V.  Quincy  Mut.  Fire  Ins.  Co.  408 
Kell  V.  Nainhy  139 
Kellenbergor  v.  Sturtevant  614 
Kelley  v.  Donnelly  573,  576 
V.  Dutch  Church  of  Sche- 
nectady 244 
V.  Johnson  78 
Kellogg  V.  (Jilhert  141,  518 
V.  IngcrsoU  242 
V.  Northampton  662 
V.  Robinson  240 
Kellow  V.  Rowden  859,  3G0 


Section 

Kelly's  case  662 

Kelsey  v.  Griswold  644 

Kemble  w.  Farren  257,258 

V.  Mills  195  a 

V.  Rhinelander  406 

Kemp  V.  Burt  144 

V.  Tinden  114 

Kempland  v.  Macauley  584,  593 

Kendall  v.  Stone         253,  255,  418,  428 

Kendrick  v.  McCrary  572,  576 

V.  Tarbell  69,  74 

Kenniston  v.  Little  629 

Kennard  v.  Burton  267 

Kennebec  Prop'rs  v.  Call  555,  557,  619 

V.  Laboree    430,  457 

V.  Springer  430,  555, 

557 

Kennebel  v.  Scrafton  684 

Kennedy  v.  Duncklee  597,  629 

V.  Motte  202 

V.  Newman  241 

V.  Strong  648 

V.  Whitwell  261 

Kennison  v.  Merrimac  Ins.  Co.  405 

Kenny  w.  Clarkson  379 

Kenrick  v.  Kenrick  44 

Kensington  v.  Inglis  389 

Kent  V.  Bonney  418 

V.  Ricards  141 

V.  Waite  659  a 

Keplinger  v.  Griffith  159 

Kerby  v.  Denby  270 

Kerr  v.  Mount  629 

V.  Osborne  119 

V.  Shaw  243 

V.  Wilan  216 

Kershaw  v.  Bailey  421 

Kerwhacker  v.  C.  C,  &c.  R.  R.  Co.  230 

Kester  v.  Stokes  11  h 

Keyes  v.  Hill  135 

V.  Keyes  463 

V.  Powell  238 

Key  worth  (;.  Hill  642,  647 

Kidd  V.  Belden  561 

Kidder  v.  Parkhurst  421,  454 

Kilborn  v.  Rewee  618 

Kilburn  v.  Adams  543,  660 

Kilshaw  v.  Jukes  482 

Kimball  v.  Min?i  Ins.  Co.  408 

V.  Coeheco  R.  R.  658 

V.  Rutland  R.  R.  215 

V.  Thompson  561,  570 

Kimball,  The  520 

Kimpton  V.  Walker  240 

Kincaid  v.  Howe  11a 

Kinder  v.  Sliaw  644 

King  V.  Baker  570,  619 


INDEX   TO   CASES   CITED. 


xll 


Section 

King  V.  Barns 

566 

V.  Boston  &  Wor.  R.  R. 

23-2  b 

V.  Bridges 

594 

V.  Hutchins 

109 

V.  Milson 

163,  172 

V.  Pliippard 

96, 633 

V.  Ramsay 

280 

V.  Sears 

114 

V.  State  Mut.,  &c.  Ins.  Co.       405 

V.  Waring 

419,421 

King  of  France  v.  Morris 

37 

Kingman  v.  Hotaling 

155 

V.  Pierce 

66,67 

Kingsford  v.  Marshall 

891 

Kingsley  v.  Bill 

75 

V.  New  Eng.,  &c.  Ins 

.  Co.  40G, 

408 

Kingston  Bank  v.  Gay 

516 

V.  Grey 

848 

V.  Phelps 

72,81 

Kinlyside  v.  Thornton 

655,  656 

Kinnaird,  Ld.  v.  Saltoun 

298 

Kinsey  v.  Heyward 

432 

Kirby  v.  D.  of  Marlborough 

534 

V.  Sisson 

156 

V.  State 

41 

Kirk  V.  Glover 

141 

V.  Hiatt 

64 

Kirke  v.  Kirke 

681 

Kirkraan  v.  Hargreaves 

642 

Kirkpatrick  ?'.  Kirkpatrick 

452,  453 

Kirtland  v.  Wanser 

183 

Kirton  v.  Braithwaite 

606 

Kist  i\  Atkinson 

136 

Kittle  V.  Merriam 

488,  490 

Kleine  v.  Catara 

78 

Kleinwort  v.  Shepard 

388 

Kline  v.  Husted 

648 

V.  Kline 

528 

Knapp  V.  Lee 

136 

V.  Maltby 

259 

V.  Salsbury 

625 

Knight  V.  Bennett 

565 

V.  Foster 

424,  425 

V.  Hughes 

113,  114 

V.  Wilcox 

573,  579 

Knobell  v.  Fuller 

425 

Knott  V.  Digges 

226 

v.  Farren 

443 

Knower  v.  Wesson 

461 

Knowles  v.  Dow 

251 

V.  Eastham 

279 

V.  Michel 

126,  127 

Kuowlton  V.  Bartlett 

580 

V.  Reed 

481 

Knox  V.  Jenks 

23 

V.  Kellock 

554,  556 

Knox  I'.  Light 
Kortz  V.  Carpenter 
Koster  v.  Innes 
V.  Jones 
V.  Reed 
Kraus  v.  Arnold 
Kuhen  v.  North 
Kupfer  V.  Augusta 
Kyle  V.  Gray 


Lacey  v.  Forrester 
Lackwood  v.  Sturdevant 
Laclough  V.  Towle 
Ladd  V.  Moore 

V.  North 

V.  Rogers 
Lade  v.  Shepherd 
Lafonde  v.  Ruddock 
Laidlaw  v.  Organ 
Laing  v.  Colder 

V.  Meader 
Lake  v.  Billers 

V.  Columbus  Ins.  Co. 
Lakin  v.  Ames 
Lamb  v.  Burnett 

V.  Durant 

V.  Johnson 

V.  Lathrop 

V.  Mills 
Lamb's  case 
Lambert  v.  Atkins 
V.  Pack 
V.  Sand  ford 
Lamine  v.  Dorrell 
Lamphier  v.  Phipos 
Lampman  v.  Cochran 
Lanauze  v.  Palmer 
Lane  v.  Applegate 

V.  Cotton 

V.  Ironmongers 

V.  Reynard 
Lang  V.  Rodgers 
Langdon  v.  Bruce 

V.  Potter      141, 
Lanter  v.  McEwen 
Lapham  v.  Barnes 
La  Place  v.  Aupoix 
La  Point  v.  Scott 
Earned  i,'.  Buffington 

V.  Earned 
Larrence  v.  Lanning 
Larue  v.  Slack 
Latham  v.  Rutley 
Lathrop  v.  Blake 


Section 
600 
243 
382 
386 
386 
602 
253 
66 
642 


173 

241 

648 

638 

560 

108 

660 

437 

397 

215 

605 

597,  629 

391 

627 

95 

878 

561 

610 

567 

415,416 

246 

166 

141 

265 

144 

258 

192 

29,  421 

68 

64  a 

303,  331 

453 

622 

338,  518,  555 

418,  420,  425 

113 

642 

35 

269,  275,  42G 

GG2 

455 

317 

209 

637 


Xlll 


INDEX   TO   CASES    CITED. 


Section 

Bection 

Lathrop  v.  Cook 

561 

Lemayne  v.  Stanley 

6  74 

Latkow  V.  Earner 

594 

Lemon  o.  Hayden 

662 

Lauo-lier  v.  Brefitt 

265 

Lempriere  v.  Humphrey 

662 

Laughton  v.  Atkins             672,  681 

692 

Lenox  v.  Leverett 

183 

Lavender  v.  Adams 

681 

V.  United  Ins.  Co. 

394 

Laveroni  v.  Drury 

219 

Lent  V.  Padelford 

66 

Law  V.  Cross 

68 

Leonard  v.  Allen                 417, 

420,  424 

V.  liar  wood 

433 

V.  Gary 

196 

Lawrence  v.  Obee 

473 

V.  Leonard 

371 

V.  Ocean  Ins.  Co. 

394 

V.  Tidd 

644 

V.  Pond 

316 

V.  Trustees 

523 

V.  Potts 

142 

Le  Sage  v.  Coussmaa 

524 

V.  Ralston 

190 

Lesher  v.  Levan 

295,  296 

Lawson  i'.  Bank  of  Salem 

193 

Lesley  v.  Nones 

528 

{;.  Lovejoy 

367 

Leslie  V.  Rounds 

232  a 

V.  Morrison 

683 

Lethbridge  v.  Winter 

625 

V.  Sherwood 

186 

Leveck  v.  Shaftoe 

478 

Lawton  (-.  Sun  INIutual  Ins.  Co. 

390 

Le  Veux  v.  Berkeley 

437 

i".  Sweeney 

129  a 

255 

Levi  V.  Essex 

204 

Leach  v.  Beardslee 

251 

V.  Lynft  &  Boston  R.  Co. 

211 

V.  JMarsh 

370 

V.  Waterhouse 

218 

Leadbctter  v.  Fitzgerald 

618  a 

Levy  V.  Peters 

190 

Leader  v.  Barry                  13C 

,  362 

461 

V.  Wilson 

158 

V.  Moxon 

431 

Lewis  V.  Alcock 

485 

Leaird  v.  Davis 

458 

V.  Chapman 

418,421 

Leauie  v.  Bray 

84 

V.  Cosgrave 

199 

Leatherdale  v.  Sweepstone 

602 

V.  Crockett 

236 

Leathers  v.  Ins.  Co. 

406 

V.  Davis 

448 

Leavitt  v.  Comer 

78 

V.  Farrell 

452 

Lebanon  v.  Olcott 

473 

V.  Gamage 

141,  518 

Le  Barron  v.  East  Boston 

Ferry 

V.  Hoover 

87 

Co. 

221 

V.  Jones 

80,  526 

Le  Cheminant  v.  Pearson 

402 

V.  Lewis 

672,  676 

Ledgard  v.  Thompson 

295 

V.  Levy 

421 

Leilwlth  V.  Catchpole 

99 

V.  ]\Iaris 

694 

Ledyard  v.  Jones 

599 

V.  Marling 

501 

Lee  V.  Abrams 

38,  39 

V.  Peake 

262 

V.  Cooke 

332 

V.  Peytarin 

156 

V.  Gray 

382 

V.  Ponsfoi-d 

618 

V.  Howard,  &c.  Ins.  Co. 

406 

4  OS 

V.  Price 

471 

V.  Muggeridge 

114 

V.  Rucker 

381 

V.  Sliore 

117 

V.  Sumner 

141,  147 

V.  Wolsey 

93 

267 

V.  Thatcher 

249 

Leech  v.  Baldwin 

220 

V.  Trickcy 

108 

Leery  v.  Goodson 

118 

LeyfieUl's  case 

300 

Lecson  V.  Holt 

216 

Liardet  v.  Johnson 

490 

LcningwcU  V.  White 

195 

Lide  ('.  Lide 

688 

Lt^gg  V.  Benion 

321 

Licnow  V.  Ritchie 

616 

Legge  r.  Tliorpe 

195 

205 

Fjitord's  case 

619 

Legh  I'.  Hewitt 

105 

Liggins  V.  Inge 

4  75 

V.  Lewis 

259 

Liglitbody  V.  The  Ontario  Bank       522 

Leicester  r.  Walter 

425 

Lightly  V.  Clouston 

108 

Lcigli  V.  Shepherd 

567 

Lillie  V.  Lillie 

681 

Lcighton  V.  Wales 

259 

Lilly  ('.  Corne 

287 

Lt'ishcrness  v.  Berry 

614 

Limber}'  v.  Mason 

681 

Leland  v.  Farnham 

161 

Linard  v.  Crossland 

618 

»;.  Stone 

259 

Lincoln  v.  Saratoga  R.  R.  Co. 

268  6 

INDEX   TO    CASES   CITED. 


xini 


Section 

Lincoln  v.  Taunt.  Copper  Manuf.        78 

&  Kennebeck  Bank  l-.  Page  1 90 

Academy  v.  Newhall  444 

Lindenberger  v.  Beall  191 

Lindo  V.  Belisario  463 

Lindon  v.  Hooper  120,  265 

Lindsley  v.  Malone  66 

Lindus  V.  Brad  well  161 

Linford  v.  Lake  625 

Linginfetter  v.  Linginfetter  683 

Linningdale  v.  Livingston  104 

Linsley  v.  Bushuell  253,  268  a 

V.  Lovely  64  a,  251 

Lion  V.  Burtis  333 

Lipe  V.  Eisenlerd  572,  579 

Liscom  IK  Boston  Mut.  Ins.  Co.  407 

Little  V.  Blunt  437,  439,  441 

V.  Libbey  430,  55  7 

V.  Megguier  430,  557 

V.  Palister  616 

V.  riiccnix  Bank  195  a 

V.  Rogers  478 

LIttledale  u.  Dixon  397 

V.  Ld.  Lonsdale  232  a 

Littlefield  y.  Shee  114 

LitMehale  v.  Dix  93,  267 

Littler  v.  Holland  235 

Livermore  v.  Claridge  533 

V.  Johnson  448 

Livingston  v.  Delafield  398 

V.  Ratcliff  141 

V.  Rogers  72 

V.  The  Md.  Ins.  Co.  252 

V.  Woodworth  496 

Lloyd  V.  Archbowle  478 

V.  Jewell  136 

V.  Mannd  442 

V.  Waterford  &  Limerick 

Railw.  Co.  215 

V.  Wigney  434 

Loader  v.  Kemp  245  a 

Lobdell  V.  Hopkins  609 

Locke  11.  Garrett  641 

V.  N.  Anier.  Ins.  Co.  379 

Lockhart  v.  Litchtenthaler  221 

Locksmith  v.  Creswell  641 

Lockwood  V.  Crawford  199 

V.  Perry  661 

Lockyer  v.  Offley  390 

LoefFner  v.  State  373 

Loeschman  v.  Mackin  640 

Logan  V.  Austin  85 

V.  Houlditoh  644 

V.  Murray  575,  576 

Loker  v.  Damon  256,  261 

Lomax  v.  Lomax  451 

Londonderry  v.  Chester  460 


Section 

Lone  V.  Chifney  172 

Long  V.  Baillie  156 

v.  Billings  586 

V.  Hebb  641 

V.  Ramsey  295,  296 

t'.  Zook  6  74 

Longchamp  v.  Fish  678 

V.  Kenny  118 

Longdill  V.  Jones  587,  588 

Longford  v.  Eyre  678,  694 

Lonsdale  v.  Church               ,  263 

Lord  V.  Baldwin  478 

V.  Chadbourne  196 

V.  Dull  409 

V.  Ferrand  516 

V.  Hall  65,  166 

Lord  Galway  v.  Matthews  485 

Kinnaird  v.  Lady  Saltoun        298 

Peter  v.  Heneage  642 

Suffield  V.  Bruce  107 

Loring  v.  Bacon  466,  473 

V.  Cook  605 

V.  Cunningham  347 

V.  Gurney  251 

V.  Neptune  Ins.  Co.  393 

Losee  v.  Dunkin  199 

Loian  V.  Cross  610 

Lothrop  V.  Snell  199 

Loud  V.  Citizens',  &c.  Ins.  Co.  406,  408 

Lougher  v.  Williams  240 

Louisiana  Bank  v.  Bank  of  U.  S.       1  72 

Love  V.  Hall  142 

Loveden  v.  Loveden       40,  41,  44 

Lovejoy  v.  Jones  640 

V.  Whipple  199 

Lovelace  v.  Reignolds  544 

V.  Reynolds  568 

Lovell  V.  Marten  644 

Lovering  v.  Lovering  51 

V.  Mercantile  Ins.  Co.         894 

Lovett  V.  Bispham  454 

Low  0.  Hutchinson  147 

V.  Nolte  71,  75 

Lowber  i\  Shaw  203 

Lowden  v.  Goodrick  89,  91,  278 

Lowe  V.  Govett  632 

V.  Joliffe  691,  694 

V.  Miller  616 

V.  Peers  259 

Lowe's  case  22 

Lowe's  Patent,  In  re  492 

Lowell  V.  Gage  163 

V.  Lewis  489,  494 

V.  Middlesex,  &c.  Ins.  Co.      406 

u.  Spaulding  472 

Lowfield  V.  Bancroft  277 

Lowndes  v.  Anderson  118 


XllV 


INDEX   TO   CASES   CITED. 


Lowrey  v.  ^lurrell 
Lowry  V.  Russell 
Loxley  v.  Jackson 
Loyd  V.  Finlayson 

V.  Harris 
Lubbock  V.  Tribe 
Lucas  V.  De  la  Cour 

V.  Nichols 

V.  Novosilieski 

17.  Wasson 

V.  Worswick 
Luflden  V.  Leavitt 
Lukin  V.  Godsall 
Lundie  v.  Robortson 
Luther  v.  Winnissimmet  Co. 
Liitterell's  case 
Lytord  v.  Toothaker 
I^yle  V.  Clason 
Lyman  v.  Brown 

V.  United  States  Bank 
Lynch  V.  Connnonwcalth 
V.  Hamilton 
V.  Nardin 
Lynn  v.  Bruce 
Lyon  V.  Ann  able 

V.  Smith 
Lysaght  V.  Bryant 
V.  Walker 


M. 

Macdonald  r.  Macdonald 
Macdoujrall  v.  Robertson 
!Mace  V.  Cadell 
INIacferson  v.  Thoytes 
Machell  V.  Ellis 

V.  Kiiinear 

I'.  Temple 
»Iachu  V.  Lond.  &  S.  W.  Railr.  Co. 
Mackay  v.  Ford 
Mackliu  V.  Waturhouse 
Maclean  f.  Dunn 
Maclcod  V.  Wakley 
Macomb  v.  Wilber 
Ma<oinl)cr  v.  Parker 
Maccjncen,  In  re 
Ma(  y  V.  Wlialin*;  Ins.  Co. 
Maddox  V.  Miller 
Mad  River,  ^ic.  Railr.  v.  Fulton 
Ma^ee  v.  Scott 
Mai^ellan  Pirates 
^lapie  0.  Seymour 
Ma;;rath  v.  Browne 
Mainwarinc  i'.  Mn  tton 

X'' 

V.  rvewmaii 
Maitland  v.  Goldney 


Section 

Section 

522 

Major  V.  Pulllam 

253 

251 

V.  Williams 

683 

G81 

Malcom  v.  Spoo 

615 

338,  339 

Mallory  v.  Aspinwall 

297 

75 

Manchester  Bank  v.  Fellows 

139, 188 

114 

V.  White 

188 

478 

Mandeville  v.  Wilson 

445,  447 

419 

Maneelyj).  M'Gee 

620 

528 

Manly  v.  Field 

573,  575 

646 

Mann  v.  Barrett 

88,  578 

123 

V.  Boston  &  W.  R.  R.  C 

0.     278  h 

561,  637 

V.  Lang 

347 

474 

V.  Lovejoy 

565 

107 

V.  Marsh 

529 

537 

V.  Stephens 

240 

544 

Manning  v.  Lunn 

605 

616 

V.  The  Duke  of  Argyle       5 1 6 

414 

V.  Westerne 

530 

26 

Manny  v.  Jagger 

494 

520 

Manson  v.  Felton 

441 

145 

Mantel  v.  Gibbs 

302 

396 

]\Iantz  V.  Collins 

583 

232  h 

Manvell  v.  Thompson 

88,573 

31 

Mapes  V.  Weeks 

275 

120 

Marble  v.  Worcester 

256 

678 

Marchington  v.  Vernon 

109 

186 

Marin  v.  IngersoU 

190 

533 

V.  Palmer 

188 

INIarkham  v.  Fawcett 

253 

]\Iarkland  v.  Crump 

240 

Markle  v.  Hatfield      124,  164, 

522,  523 

Markley  v.  Amos 

14i 

448 

Marlow  v.  Pitfield 

365 

7Q 

Marr  v.  Bootliby 

619 

130 

Marriott  v.  Hampton 

121 

165 

V.  Stanley 

232  a 

642 

Marsden  v.  (ioode 

605 

478 

V.  Reid 

882,396 

678 

Marsh  v.  Bancroft; 

586 

Co.  232  a 

I'.  Blytlie 

219 

421 

V.  Biilteel 

79 

216 

V.  Gold 

685,  594 

59,  61 

V.  Home 

218 

418 

V.  Iloulditch 

632 

78 

V.  Packer 

79 

251 

V.  Ward 

25 

78 

V.  Wood 

79 

251 

Marshall  v.  Columbian  Ins.  Cc 

406 

365 

V.  Ilaney 

237 

n         213 

V.  Nagel 

141 

644 

V.  Parker 

388 

219 

V.  York,  &c.  Railway 

Co.    211 

592 

^larsliaH's  case 

688 

577 

Marsldield  v.  Marsh 

338 

205 

Marsteller  v.  McClean 

438 

478 

Marston  v.  Ilobbs 

240,  21 1 

424 

V.  Roe 

681 

INDEX   TO   CASES    CITED. 


xlv 


Section 

Martin  v.  Bay  ley  562 

V.  Bell  582 

V.  Dortch  296 

V.  Fishing  Ins.  Co.  394,  401 

V.  Gillain  655 

V.  Goble  471 

V.  Hardesty  458 

V.  Long  264 

V.  Martin  462,  463 

V.  Payne  88,  573,  576 

V.  People  662 

V.  Strachan  303 

V.  Thornton  74,  78 

V.  Winslow  179 

Martins  v.  Gardiner  681 

Martyn  v.  Blithinan  115 

u.  Podger  597,629 

Maryatts  v.  White  529,  530,  534 

Mar'yon  v.  Carter  235 

Marzetti  v.  Williams  146,  584 

Mason  v.  Potter  481 

V.  Waite  118 

V.  Wright  365 

Massachusetts  Bank  w.  Oliver  186 

Massey  v.  Goyner  473 

Masten  v.  Masten  53 

Master  v.  Cookson  278  A 

Masters  v.  Baretto  160 

V.  Barrets  160 

V.  Pollie  617 

Masterson  v.  Le  Claire  141 

Masterton  v.  Brooklyn  256 

Mather  v.  Clark  363 

V.  Green  433 

Mathers  v.  Pearson  111 

Mathews  v.  Beach  421 

Matson  v.  Buck  275 

V.  Magrath  684 

V.  Trovver  73 

Matthews  v.  Howard  Ins.  Co.  387 

V.  Medneger  649 

V.  Phillips  432 

V.  Redwine  280 

V.Terry  93,97 

V.  W.  Lond.  Waterw.  Co. 

232  a 

Matthie  v.  Potts  388 

MattS  y.  Hawkins  617 

Maunder  v.  Venn  88,  572 

Maus  V.  Maus  11a 

Mawman  v.  Gillett  478 

Mawson  v.  Blane  367 

Max  V.  Roberts  209,  228 

Maxwell  v.  Chapman  461 

V.  Jameson  113 

May  V.  Brown  275 

Coffin  195 


Section 

May  V.  Harvey  644 

V.  Kornhaus  268 

V.  Pro  by  591 

JNIayall  v.  Boston  &  Me.  R.  R.  212 

Maybin  v.  Railroad  Co.  212 

Mayer  v.  Jadis  166 

May  hew  v.  Boyce  221 

V.  Eames  220 

V.  Herrick  646 

V.  Nelson  213 

V.  Thayer  108 

Maynard  v.  Frederick  74,  78 

V.  Maynard  297 

V.  Nekervis  207 

Mayne's  case  236 

Mayor  v.  Johnson  156 

Mayor,  &c.  of  Carmarthen  v.  Lewis 

11  .'/ 

Mc  Alexander  v.  Harris  275 

McAllister  v.  Hammond  226 

V.  Reab  136 

V.  State  373 

McAlmont  v.  McClelland  269 

Mc  Andrew  v.  Bell  380 

McArthur  v.  Campbell  75 

V.  Ld.  Seaforth  261 

V.  Sears  219 

McAulay  v.  Birkhead  579 

JNIcBride  v.  McLaughlin  253 

McBurney  v.  Cutler  626 

McCartee  v.  Camel  278/ 

Mc  Carver  v.  Nealey  141 

McClintick  V.  Cummins  302 

McClure  v.  Burton  11a 

V.  Dunkin  263 

McCombie  v.  Davies  642 

McConnell  v.  Brown  297 

McCoon  V.  Smith  363 

McCormick  v.  Hudson  River  Railw.  221 

V.  Manny  490,  506 

V.  Sisson  454 

McCready  v.  S.  Car.  Railw.  Co.        230 

I'.  Wood  hull  78 

McCrillis  v.  Hawes  648 

McCuUough  i\  Irvine  656 

Mc  Curry  l\  Hooper  371 

McCutchiu  V.  Bankston  484 

McDaniels  v.  Van  Fosen  78 

McDill  V.  McDiU  296 

McDonald  v.  Black  68  a 

V.  Blackstone  Canal  Co.  533 

V.  Lindall  660 

V.  Rooke  454 

McDonough  v.  Gilman  472 

McDougle  V.  Royal  Exch.  Ass.  Co.    391 

McDowell  V.  Fraser  397 

McElroy  v.  Na^lma,  &c.  R.  R-  Co.     222 


XlVl 


INDEX   TO   CASES   CITED. 


Section 

McFadden  v.  Maxwell  207 

McFarlin  v.  Essex  Company  537,  543 

jMcGec  V.  Prouty  518,  527 

RIcGill  V.  Rowand  221 

MeGilvray  v.  Avery  26 

McGregor  v.  Cleveland  478 

McGurn  v.  Brackett  453,  454 

Melnille  r.  "Wheelock  60G 

Melntvre  v.  Trumbull  580 

McIvcV  i:  Humble  239 

McJilton  i\  Love  2G 

V.  Smizer  GOO 

McKee  r.  Manice  115 

McKeuire  v.  Fraser  310,  6  79 

]\IcKInley  v.  McGregor  5G2 

McKanney  v.  Clark  -       463 

V.  Neil  222 

V.  Rhoades  297 

McKinstry  v.  Solomons  73 

McLachlan  v.  Evans  118 

McLellan  v.  Bank  of  Cumberland     453 

V.  Crofton  11  e,  113,  445,  447 

McLemore  v.  Powell  202 

McLeod  V.  M'Ghie  649 

]McMahon  v.  Ryan  688 

McManus  v.  Crickett  68,  621 

McXaghten's  case  373 

McNa'ir  V.  Gilbert  156 

McXamara  v.  King               89,  253,  269 

^IcNeil  V.  Percliard  587 

McPlierson  r.  Chedeall  412 

V.  Daniels  414 

V.  McPherson  38 

V.  Rathbone  484 

McQueen  v.  Fletcher  628 

McTavish  i'.  Carroll  658 

Mead  I'.  Daubigny  418 

V.  Degolyer  104 

V.  Paddock  136  a 

V.  Small  190 

V.  Young  158 

Meade  v.  Wheeler  259 

Meads  v.  Gushing  253 

Meany  v.  Head  560,  561 

Mease  v.  Keefe  669 

Mechanics'  Bank  v.  Hildreth  167 

V.  Merchants' 

Bank  251 

V.  Williams  556 

Mecorney  v.  Stanley  163 

Medlycot  v.  Assheton  628 

Medway  v.  Needham  460 

Meggot  V.  Mills  531 

Meiglicn  V.  Bank  251 

Meig.s  i;.  Mutual,  &c.  Ins.  Co.  251 

Melledge  v.  Boston  Iron  Co.  62,  520 

Melleu  V.  Thompson  95 


Section 
Mellen  v.  Western  R.  R.  Corp.  616 

V.  Whipple  107,  110,  616 

Melville  v.  Brown  647 

Melvin  V.  Whiting  539 

INIence  v.  Mence  681 

Mendez  v.  Carreroon  169 

]Mercantile  Bank  v.  Cox  480 

Mercantile  JNIarine  Ins.  Co.  v.  Cor- 
coran 111 
Mercer  7.  Jones                            276,  649 
V.  Walmsley                             576 
]\Ierchants'  Bank  v.  Elderkin  1 78 
INIerchants',  &c.  Ins.  Co.  v.  Wilson     251 
Merest  v.  Harvey                   89,  253,  271 
Merle  v.  Andrews                                 435 
Merriam  v.  Bayley                               444 
V.  Cunningham    364,  865,  368 
V.  Leonard                             440 
V.  iMiddlesex  Ins.  Co.           408 
V.  Mitchell                      453,  455 
V.  Wolcott  122 
Merrill  v.  Boylston  F.  &  M.  Ins.  Co.  403 
V.  Howe                                 635  a 
V.  Merrill  258 
Merritt  v.  Earle                                    219 
V.  Lyon                            563,  597 
V.  Todd  1 99 
Merry  weather  v.  Nixan  1 1 5 
Mersereau  v.  Norton                            646 
Meserole  v.  Archer                               603 
Merwin  v.  Camp  295 
V.  Huntington                 111,  121 
Messer  v.  Woodman  107 
Metlmen  Co.  v.  Hayes  61 
Michaels  v.  N.  Y.  Cen.  Railw.            219 
Michigan  Central  R.  R.  v.  Ward       210 
Middleborough  i\  Rochester               464 
Mlildlemore  k  Goodale                         240 
Middleton  v.  Brewer                             600 
V.  Price                                629 
Mildmay  v.  Dean                                   625 
Miles's  Will                                              6  74 
Miles  V.  Cattle                                       220 
V.  Conn.  Mutual  Ins.  Co.  40G,  409 
V.  Moodie                                    440 
]\IIIfbrd  V.  Worcester                   460,  464 
Mllgate  V.  Kebble                                 640 
jMillard  v.  Baldwin  70 
Miller  v.  Adams                                    433 
V.  Adsit                                       561 
V.  Atlee                                   1 1 7 
V.  Baker                                     621 
V.  Bartlctt                                  420 
r.  Butler                    256,416,417 
V.  Carothers                               694 
V.  Delamater                             166 
V.  Hackley                                 196 


INDEX   TO   CASES   CITED. 


xlvii 


Section 

Miller  V.  Halsey  244 

V.  Lancaster  442 

V.  M'Brier  305 

V.  Clenachan  485 

V.  Miller  108,  120,  414,  690 

V.  Race  122 

V.  Sraitli  13G 

V.  Steam,  &c.  Co.  210 

V.  The  Mariners'  Church         261 

V.  Webb  156 

Milligan  v.  Wedge  232  a 

Millikin  v.  Brown  519 

V.  Tufts  533 

Millne  V.  Wood*  595 

Mills  V.  Bank  of  U.  S.  16,  186,  189 

V.  Fowkes  444,  532,  535 

V.  Gore  297 

V.  Spencer  424 

V.  Western  Bank  115 

Milman  v.  Dolwell  625 

Milne  v.  Gratrix  79 

Milnes  v.  Branch  240 

V.  Duncan  123 

Miner  v.  Clark  244 

Minet  v.  Gibson  14,  166 

Minnesinger  v.  Kerr  426 

Minnett  v.  Whitney  484 

Minor  v.  Mechanics'  Bank  133 

V.  Thomas  688 

Minter  v.  Hart  492 

V.  Mower  489,  494 

V.  AVells  492 

Minton  v.  Woodworth  280 

Mires  V.  Solebay  642,  644 

Mitchell  V.  Ball  534 

V.  Gibbes                     ,  290 

V.  Jenkins  453,  454 

V.  King  605 

V.  Kingman  135,  3  70 

V.  Lunt  343,  345 

V.  Stavely  78 

V.  Warner  242,  244,  557 

V.  Williams  454,  644 

Mixer  i\  Coburn  251 

Mochring  v.  Mitchell  278  h 

Moffat  V.  Van  Millingen  478 

Moffatt  V.  Parsons  606 

Moilliet  V.  Powell  11  d 

Moir  V.  Royal  Ex.  Ass.  Co.  383 

Moises  V.  Thornton  412 

Moline  Water  Power  &c.  Co.  v. 

Nichols  108 

Moller  V.  Lambert  478 

Monckton  v.  Pashley  229 

Monk  V.  Noyes  245  a 

INIonprivatt  v.  Smith  273,  634 

Montague  v.  Perkins  435 


Montoya  v.  Lond.  Assur.  Co. 
Montriou  v.  Jeffreys 
IVIonumoi  v.  Rogers 
]\Ioodey  v.  Pender 
INIoodie  V.  Reed 
Moody  y.  Stracey 

V.  Whitney 
Moon  V.  Andrews 
V.  Raphael 
Moor  V.  Cornville 

V.  Hill 
Moore  v.  Abbot 

V.  Adam 

V.  Campbell 

V.  Eddowes 


Section 

387 

143 

625 

457 

6  75 

11  a 

638, 649 

351 

649 

660 

127 

232  a,  473 

89 

251 

123 

V.  Fitchburg  R.  R.  Co.  68 

V.  Greene  448 

V.  Michigan  C.  R.  Co.  210 

V.  Moore  112,  618,  678,  683 

V.  Protection  Ins.  Co.  394 

V.  Rawson  476 

V.  Robinson  226 

V.  Sheridine  209 

V.  Stevens  443 

V.  Taylor  634 

V.  Terrell  427 

V.  Wilson  36,  209,  212 

V.  AVoolsey  409 

Moores  v.  Wait  640 

Moorhead  v.  Fry  104 

Mooring  v.  Mobile,  &c.  Ins.  Co.         520 

Moorsum  r.-Moorsum  51 

Moran  v.  Dawes  229,  571,  573 

v.  Portland,  &c.  Co.  211 

Moravia  v.  Levy  127 

Moreland  v.  Bennett  290 

Moreton  v.  Hardera  226 

Morgan  v.  Adams  37 

V.  Banta  539 

V.  Brydges  582 

V.  Chester  580 

V.  Edwards  300 

V.  Hughes  452 

V.  Ide  637 

V.  Mather  78 

V.  Moore  556 

V.  Palmer  121 

V.  Richardson  136 

V.  Seaward  490,  493,  494 

V.  Smith  78 

Moriarty  v.  Brooks  83 

Morland  v.  Pellatt  587 

Morrell  v.  Trenton,  &c.  Ins.  Co.        409 

Morris  v.  Barker  424 

V.  Corsan  454 

V.  Davies  150 

V.  Edo-inston  545 


xlviii 


INDEX   TO   CASES    CITED. 


Section 

Morris  v.  Hauser  191 

V.  Miller  49,  461 

V.  Ross  78 

V.  Scott  449,  457 

Morrison  v.  Beckey  109 

v.  Berkey  113,118 

V.  Funk  528 

Morse  v.  Aldrich  240 

V.  James  105 

Mortara  v.  IJall  366 

Mortimer  v.  Mortimer  45 

Morton  v.  Shoppee  82 

V.  Webb  26 

V.  Westcott  188 

Moray  v.  Bardett  230 

Mosely  V.  Keade  126 

Moses  V.  Boston  &  Maine  Railw.       215 

V.  Macfarlan  117 

V.  Norris  591 

Mossop  V.  Eadon  156 

Mosyn  v.  Fairbrigas  86 

Mott  ('.  Kip  583 

Mottram  v.  Mills  163,  202 

Moulton  V.  Scruton  261 

Mountlbrd  i'.  Gibson  345,  649 

Mountsteplien  v.  Brooke  440,  441 

Mower  v.  Watson  421 

Mowry  V.  Todd  112 

Mucklow  V.  Mangles  638 

Muldrow  V.  ^IcCleland  238,  241 

Mulgrave  v.  Ogden  642 

^luUieran  c.  Gillespie  524 

Mullet  V.  Hook  25 

t'.  llulton  274,  424,  425 

Mulvcliall  0.  iNIillward  572 

Slumlord  v.  Freeman  440 

V.  McKay  647 

Munn  V.  Baker  21  7 

Munns  v.  Dupont  295,  451 

Munroe  v.  Allaire  75 

V.  Cooper  172 

Munson  v.  N.  E.  Ins.  Co.  394 

Muiit  V.  Stokes  341 

^Iiirgatroyil  i'.  Murgatroyd  579 

Miirpliy  V.  Staton  219 

V.  N.  Y.  &  N.  II.  Railw.      224 

Murray  I'.  Bogue  515 

V.  linker  437 

V.  Burling  641 

V.  Carrett  156 

V.  K.  I.  Co.  435 

V.  Long  453,  554 

V.  Mcllugh  124 

V.  SomtTville  25 

V.  S.  Car.  Kailw.  Co.  232  a 

Muscliamp  V.  L:mcA»ti'.r  &  P.  J. 

Railway  Co.  210 


Section 
159, 172 
226 
75 
251 
196 
480 


Musgrave  v.  Drake 
Muskett  V.  Hill 
Musselbrook  v.  Duncan 
IVIussey  v.  Eagle  Bank 
jNIyers  v.  Standart 
Myrick  v.  Dame 


N. 


Nagle  V.  Baylor  800 

Nailing  v.  Nailing  688 
Naish  V.  Tatlock  ^  .  ^^^ 
Narragansett  Bank  v.  Atlantic  Silk 

Co.  62 

Narraguagus  v.  Wentworth  141 

Nash  V.  Drew  64 

V.  Hodgson  529 

V.  Nash  279 

V.  Whitney  592 

National  Exchange  Co.  v.  Drew  68 

Naylor  v.  Collinge  656 

V.  Naylor  52 

V.  Semmes  251 

Neal  V.  Erving  66 

V.  Sheflieid  28 

Neale  v.  Ledger  73 

Nealley  v.  Greenough  302 

Neave  v.  Moss  305 

Nebraska  City  v.  Campbell  89,  267 

Needham  v.  Dowling  421 

Neel  V.  Deans  124 

Neil"  ?;.  Thompson  561 

Neil  V.  Neil  678 

NeiU  I'.  Morley  369 

Neilson  v.  Hartford  489,  490 

Nelson  v.  Clough  77 

V.  Salvador  383 

V.  Suirolk  Ins.  Co.  387 

V.  AVhittall  158 

Nelthorpe  v.  Dorrington  649 

Nesbit  V.  Nesbit  240 

Nettles  I'.  Railroad  Co.  219 

Nettleton  v.  Sikes  627 

Neve  V.  Hollands  444 

Newberry  v.  James  490 

Newbold  v.  Lamb  296 

V.  Sims  39 

V.  ^Vright  249 

Newborn  v.  Just  218 

New  Brunswick  Co.  u.  Tiers  219 

Newburyport  v.  Boothbay  462 

Newburyport  Ins.  Co.  v.  Oliver         393 

Newby  v.  Read  386 

Newciistle  Fire  Ins.  Co.  v.  MacMor- 

ran  406 

Newell  V.  Downs  454 


INDEX   TO   CASES   CITED. 


xlix 


Section 

New  England  Bank  v.  Lewis  193 

Newhall  v.  Ireson  467,  474 

V.  Wheeler  23,  555 

New  Hampshire,  &c.  Ins.  Co.  v. 

Hunt  104 

New  Haven  County  Bank  v.  Mitch- 
ell 193,  295 
New  Haven  Steamboat  Co.  v.  Van- 

derbilt  _  267 

Newhouse  v.  Godwin  689 

New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank  215 
Newkirk  v.  Sabler                                627 
Newland  v.  Douglas  78 
Newman  v.  Bean                                  481 
V.  Jenkins                           278  d 
V.  Newman                           291 
Newmarch  v.  Clay                               529 
Newmark  v.  Liverpool  Ins.  Co.          394 
New  jNIarlborough  v.  County  Com- 
missioners                                         141 
Newnbam  v.  Tetherington                  483 
Newport  v.  Hardy                                135 
Newsam  v.  Carr                            454,  458 
Newsom  v.  Tliornton                           380 
Newsome  v.  Graham                            120 
Newton  v.  Clarke                                 678 
V.  Galbraith                            602 
V.  Grand  Railway                  506 
V.  Harland                              622 
V.  Rowe                                   425 
V.  Vaiicher                              493 
V.  Wilson                                621 
New  York  v.  Ransom                          496 
New  York  Central  Ins.  Co.  v.  Na- 
tional Pro.  Ins.  Co.                         64  a 
New  York  Life  &  Trust  Co.  v. 

Beebe  63 

New  York  State  Bank  v.  Fletcher    519 

&  H.  R.R.  Co.  V.  Marsh  121 

Niagara  Bank  v.  Rosevelt  529,  531 

Niblo  V.  N.  Amer.  Ins.  Co.  407 

Niehole  v.  Allan  108 

Nichols  V.  De  Wolf  251 

V.  Fayette  Ins.  Co.  405 

V.  Luce  657,  658 

V.  Pool  174 

V.  Todd  554 

Nicholson  V.  Coghill  453,  455 

V.  Croft  260,  377 

V.  Frazier  517 

V.  Gouthit  195 

Nickleson  v.  Stryker  88,  573,  576 

NicoU  V.  Glennie  644 

Nicolls  V.  Bastard  640 

Nightingal  v.  Devisme  112,  118 

Nightingale  v.  Withington  166 

VOL    II.  d 


Niles  V.  SawteU 

Section 
240 

Niver  v.  Best 

111 

Nixon  V.  Jenkins 

644 

V.  Palmer 

66 

V.  Phelps 
Noble  V.  Adams 

113,  H4 

638 

V.  Bates 

259 

V.  Kennoway 
Noding  V.  Alliston 

250,  251 
676 

Noel  V.  Murray 
Noell  V.  Wells 

520,  523 
339 

Noke  V.  Awder 

240 

V.  Ingham 

133 

Nolan  V.  Jackson 

141 

Nolton  V.  The  Western  Railw.       222  a 

Norbury  v.  Meade  665 

Norcross  v.  Widgery  430,  557 

Norfolk,  Ex  parte     '  25 

V.  Gaylord  153 

Norman  v.  Wells  240 

Norris  v.  Smith  331 

North  V.  Miles  6«3 

V.  North  53 
Northampton  Pap.  Mills  v.  Ames      614 

North  Bank  v.  Abbott  197 

Northcutt  V.  Northcutt  674 

Northfield  v.  Vershire  462 

Northop  V.  Wright  557 
Northwestern  Railway  Co.  v. 

Sharp  147 

Norton  v.  Babcock  244 

V.  Gordon  414 

V.  Lewis  195,  197 

V.  Marden  123 

V.  Norton  369 

V.  Savage  73 

I'.  Seymour  159,  161 

V.  Warner  55 
Norway  Plains  Co.  v.  Boston  &  M. 

R.  R.  210 

Nowell  V.  Roake  336,  456 

V.  Sands  625 

Norwood  V.  Manning  530 

Noyes  v.  Cushman  481 

V.  Dver  556 

V.  Rutland  &  B.  R.  R.  Co.      210 

Nutting  V.  The  Connecticut  River 

R.  R.  Co.  210 

Nye  V.  Smith  599 


O. 


Oakapple  v.  Copons 

321 

Oakes  V.  Brydon 

818 

V.  Marcy 

307 

V.  Wood 

95 

Oakham  v.  Holbrook 

472 

INDEX   TO   CASES    CITED. 


Odiorne  v.  CoUey 

V.  Maxey 
OfTut  V.  OCTut 
0"lo  V.  Cook 
Olil  V.  The  Eagle  Ins.  Co. 
Okell  V.  Smith 
O'KcUy  L'.  O'Kclly 
Olcott'y.  Rathbone 
Oldham  v.  Bateman 

V.  Peake 
Oldnall  V.  Deakin 
O'LinJa  v.  Lathrop 
Olmstead  v.  Beale 
Onialv  V.  Swan 
O'N.mII  v.  Farr 
O'Neill  L'.  Read 
Onions  v.  Tyrer 
Onslow  V.  Orchard 
Oothout  V.  Thompson 
Orange  Co.  Bank  v.  Brown 
Ord  i:  Portal 
O'Reilly  V.  Morse 
Oridge  v.  Sherborne 
Orpwood  V.  Barkes 
Orr  l:  Churchill 
Orser  v.  Storms 
Osborn  v.  Cook 
Osborne,  In  re 
Osgood  V.  Breed 

V.  Coates 

V.  Gi'een 

V.  Pearsons 

V.  Spencer 
O'Shaughnessy  v.  Haydn 
Oswald  V.  Leigh 
Oswtgo  V.  Oswego  Canal  Co. 
Otis  u.  Glbbs 
V.  Jones 
Ottawa  V.  La  Salle  Co. 
Ougliton  V.  Seppings 
Oiitwater  v.  Nelson 
Oviatt  V.  Sage 
Owen  {'.  Barrow 
V.  Burnett 
V.  Lewvn 
V.  O'Reilly 
V.  Owen 
Owenson  i\  Morse 
Owings  V.  Hull 
Oxenham  i'.  Clapp 
Oxford  Bank  v.  Iiaynes 
Oystead  v.  Shed 


Pack  V.  Alexander 
Packard  r.  A-ijawam,  &c.  Ins. 


Section 

Section 

637 

Packer  v.  Gillies 

638 

66,  68 

Paddock  v.  Forrester 

544 

135 

V.  Franklin  Ins. 

Co. 

386,  399, 

694 

400,  401 

378 

V.  Salisbury 

424 

136 

Padget  V.  Priest 

343 

297 

Padmore  v.  Lawrence 

421 

112,  520 

Page  V.  Gushing 

449 

110 

V.  Hatchett 

471,  642 

417 

V.  Hubbard 

520 

679 

V.  Mann 

158 

657 

V.  Robinson 

614 

136  a 

V.  Wiple 

453 

524 

Pain  V.  Whittaker 

640 

682,  688 

Paine  v.  Bacomb 

103,  104 

363 

V.  Hall 

6  75 

680,  681 

Painter  v.  Abel 

112 

277 

Palethorp  v.  Furnish 

65 

446 

Palmer  v.  Fletcher 

471 

221 

V.  Manning 

158 

167,478 

V.  ReifFenstein 

142 

503,  506 

V.  Stevens 

258, 

298,  614 

186 

Panton  v.  Holland 

230,  466 

414 

V.  Williams 

454 

258 

Paradine  v.  Jane 

235 

614 

Parchman  v.  McKinney 

533 

675 

Pardee  v.  Drew 

221 

668 

Parfit  V.  Thompson 

401 

672 

Parient  v.  Plunitree 

591 

555 

Parish  v.  Burwood 

285 

561,568 

V.  Stone 

136,  199 

118 

V.  Whitney 

242 

135 

Park  V.  Bates 

264 

275 

Parke  v.  OUat 

675 

290 

Parker  v.  Atfield 

351 

662 

V.  Bailey 

229,571 

265 

V.  Barker 

484 

635  a 

V.  Coburn 

524 

21 

V.  Colcord 

26,431 

121 

V.  Downing 

518 

251 

V.  Dunn 

243 

646 

V.  Elliot 

226,  571 

65 

V.  Farley 

452 

,  453,  454 

216 

V.  Fenn 

684,  592 

642 

V.  Foot 

53!)  a 

255 

V.  Gordon 

178 

45 

V.  Great  Western  Railw.  Co.  121 

523 

V.  Hanson 

206,  207 

66 

V.  Hill 

297 

350 

V.  Huntington 

449 

,453,457 

186 

V.  Norton 

265 

621 

V.  Osgood 

521 

V.  Parker 

669.  672 

V.  Perkins 

603 

V.  Potts 

401 

193 

V.  Rolls 

144 

:;o.      406 

V.  Smith 

fi.i? 

INDEX   TO    CASES   CITED. 


Section 

Section 

Parker  v.  Stiles          488,  489, 

492, 

493, 

Pearce  v.  Davis 

520 

496 

505 

V.  Ornsby 

418 

V.  United  States 

113 

V.  Whale 

412 

V.  Way 

150 

Pearcy  v.  Dicker 

295 

Parkliurst  v.  Jackson 

520 

Peardon  v.  Underbill 

544 

V.  Ketchum 

424 

Pearsoll  v.  Chapin 

367 

V.  Kinsman 

495 

Pearson  v.  Henry 

347 

Parkin  v.  Bainbridge 

681 

V.  Inlow 

622 

Parkins  v.  Cox 

656 

V.  Lemaitre 

271 

Parkman  v.  Osgood 

446 

V.  Lord 

111 

Parks  V.  Boston 

276 

V.  McGowran 

284,418 

Parmer  v.  Anderson 

418 

V.  Parker 

113 

Parminter  v.  Symonds 

164 

V.  Wightman 

295 

Parmiter  v.  Coupland 

411 

Pease  v.  Hirst 

478 

Parramore  v.  Taylor 

688 

V.  Naylor 

351 

Parrott  v.  Thatcher 

51 

,252 

Peck  V.  Murtry 

238 

Parry  v.  Fairhurst 

lid 

V.  Sill 

11a 

V.  House 

305 

,565 

Pecke  V.  Ambler 

435 

Parsons  v.  Brown 

98 

Peckham  v.  Lyon 

64  a 

V.  Crosby 

478 

Peebles  v.  Reading 

331 

V.  Hall 

78 

Peek  V.  North  Staffordshire 

Railw. 

V.  Hancock 

347 

Co. 

215 

V.  Loyd 

621 

Peel  V.  Thomas 

481 

V.  Pettingill 

635 

Peele  v.  Merchants'  Ins.  Co. 

392 

V.  Plaisted 

11  rt 

V.  Suffolk  Ins.  Co. 

392 

Partington  v.  Butcher 

443 

Peer  v.  Humphrey 

638 

Parton  v.  Hervey 

460 

Peeters  v.  Opie 

136  a 

Partridge  v.  Beere 

326 

Pegg  V.  Stead 

136 

V.  Coates 

285 

Peerce  v.  Benjamin 

635  a,  642 

Pasley  v.  Freeman 

230  rt 

V.  Pender 

180 

Pasmore  v.  Bousfield 

24 

,  131 

V.  Tobey 

444 

Passinger  v.  Thorburn 

262 

Peirse  v.  Bowles 

608 

Patapsco  Ins.  Co.  v.  Coulter 

387 

,  390 

Peirson  v.  Steinmyer 

481 

V.  Soutbgate 

392 

Pemberton  v.  Pemberton 

682 

Patience  v.  Townley 

195 

Pembroke's,  Countess  of,  case             655 

Patrick  v.  Colerick 

627 

Penaro  v.  Flournoy 

442 

V.  Putnam 

104 

Pendleton  v.  Phelps 

438 

V.  AVoods 

11  a 

Pendrel  v.  Pendrel 

150 

Patten  v.  Patten 

641 

Penfield  v.  Jacobs 

440 

V.  State  Bank 

156 

Penfold  V.  Westcot 

423 

V.  Tallman 

691 

Penley  v.  Watts 

245  a 

Patterson  v.  Black 

S 

78  A 

Penn  v.  Glover 

243 

V.  Patterson 

441 

693 

V.  Ward 

95 

Pattison  v.  Hull 

533 

Penniman  v.  Munson 

481 

V.  Jones 

419 

423 

V.  Rotch 

445 

V.  Robinson 

638 

644 

V.  Tucker 

382 

Paul  V.  Simpson 

343 

Pennington  v.  Gibson 

279 

Pawson  V.  Watson 

396 

V.  YeU 

147 

Payne  v.  Jenkins 

126 

Penny  v.  Porter 

209 

V.  Rogers 

473 

Penruddock's  case 

472 

Paynter  v.  Williams 

114 

Penson  v.  Lee 

382 

Payson  v.  Caswell 

457 

People,  The,  v.  Cunningham 

466 

V.  Whitcomb 

112 

V.  Dunning 

580 

Peabody  v.  Denton 

156 

V.  Howell 

520 

Peacock  v.  Harris 

129 

V.  Humphrey 

461 

V.  Peacock 

477 

V.  Miller 

461 

V.  Rhodes 

163 

V.  Niagara 

136, 562 

Ill 


INDEX   TO    CASES   CITED. 


Section  I 

People,  The,  v.  Robinson  373 

V.  Rowland  293 

V.  Sprague  373 

V.  Trinity  Church         331 

Pepper  v.  Burland  104 

Peppin  V.  Shakespear  631 

V.  Solomons  383 

Percival  v.  Blake  124 

PerJcins  v.  Cummings  199,  523 

V.  Eastern  Railr.  Co.  232  a 

V.  Hart  128 

r.  Jordan  251 

V.  Lyman  258 

V.  Perkins  53,  431,  689 

V.  Pitts  330 

V.  Savage  HI,  121 

V.  Smith  645 

V.  The  Franklin  Bank  249 

V.  Washington  Ins.  Co.  62 

V.  Wing  75 

Parley  v.  Chandler  616 

V.  Foster  694 

V.  Little  440 

Perminter  v.  Kelley  646 

Pernam  v.  Weed  658 

Perrins  v.  HiU  139 

Perris  v.  Roberts  636 

Perry  v.  Chandler  614 

V.  Dover  121 

V.  Jackson  438 

V.  Marsh  232  h 

V.  Roberts  529 

Perry  v.  Slade  126 

V.  Turner  518 

V.  Watts  1 1  e 

Person  v.  Chase  367 

Pervear  v.  Kimball  580 

Peter,  Ld.  v.  Heneage  642 

Peters  v.  Anderson  530 

V.  Ballistier  66 

17.  Craig  79 

V.  Fleming  865 

V.  Fos3  430 

V.  Warren  Ins.  Co.  387 

Peterson  v.  Ay  re  261 

V.  Loring  74 

Petit  V.  Addington  88,  89 

Peto  V.  Hague  65 

Petrie  r.  Lamont  621 

Peltoc  V.  Prout  163 

Pettibone  v.  Derringer  489 

Pettigrew  v.  Pringle  383 

Pettison  v.  Hull  529 

Pcttit  V.  A<Miiigton  278 

Peyton  V.  Mavor,  &c.  of  London       4  73 

Peytona,  The',  219 

Pfeifler  v.  Grossman  622 


Section 

Pfiel  V.  Vanbatenburg  155,  169,  170, 

527 

Phealing  V.  Kenderdine  579 

Phelps  V.  Conant  105 

V.  Hartwell  690 

V.  London  &  N.  W.  R.  Co.     221 

V.  Williamson  440 

Philbrook  v.  New  Eng.,  &c.  Ins.  Co.  406 

Phillimore  v.  BaiTy  639 

Phillips  V.  Allen  150,  152 

V.  Astling  186 

11.  Blake  522 

V.  Bridge  145 

V.  Covert  615 

V.  Cummingg  24 

V.  Earle  220 

V.  Hall  621 

V.  Howgate  95,  273 

V.  Hoyle  254,  579 

17.  Hunter  460 

V.  Jansen  414 

i\  INIerrimac,  &c.  Ins.  Co.      405 

t;.  Naire  392 

V.  Page  500 

V.  Peters  441 

V.  Phillips  440 

V.  Smith  264 

V.  Stevens  245  a 

r.  Warren  170,527 

Phillipson  v.  Mangles  684,  589 

Philpot  I'.  Bryant  202 

V.  Dobbinson  564 

V.  Holmes  625 

V.  Kelley  642,  644 

Phipps  r.  Chase  180,188 

V.  Milbury  Bank  188 

V.  Pitcher  691 

Phipson  V.  Kneller  195 

Phyn  V.  Royal  Exch.  Ass.  Co.  390 

Pickard  v.  JBankes  118 

Pickering  v.  Rudd  622,  634 

Pickett  V.  King  1 1  a 

Picquet  v.  Curtis  1 74,  435 

Picton  V.  Jackson  412 

Pidge  V.  Tyler  23 

Pierce  v.  Benjamin     265,  272,  276,  649 

r.  Blake  142 

V.  Butler  204 

V.  Cate  195 

V.  Crafts  112 

V.  Drake  523 

V.  Fuller  259 

V.  Hakes  295 

V.  Jackson  685,  593,  594 

r.  Pendar  188 

V.  Pickens  229,  624 

V.  Pierce  51 


INDEX   TO   CASES   CITED. 


Iui 


Section 

Section 

l*ierce  v.  Thompson 

449 

Pool  V.  Pratt 

460 

V.  Tobey 

444 

Poole  V.  Huskinson 

660 

V.  Whitney 

190 

V.  Palmer 

161 

Piercy,  In  re 

678 

V.  Smith 

156 

Pierre  v.  Fernald 

539  a 

V.  Symonds 

637 

Pierson  v.  Hooker 

190 

Pooley  t).  Millard 

156 

V.  Hutchinson 

156 

Poor  V.  Robinson 

554 

V.  Post 

620 

Pope  V.  Biggs 

566 

Piggott  V.  Eastern  Railw. 

Co.              230 

V.  Davies 

284 

Pigott  V.  HoUoway 

295 

Popkin  V.  Popkin 

53 

V.  Kemp 

95 

Popley  V.  Ashley 

523 

Pike  V.  Brown 

109 

Poplin  V.  Hawke 

672 

V.  Emerson 

141 

Popplewell  V.  Pierce 

230 

Pilkiiigtou  V.  Hastings 

569,  607 

Pordage  v.  Cole 

136  a 

Pilkington's  case 

569 

Porter  v.  Cole 

297 

Pimm  V.  Grevill 

569 

V.  Cooper 

126 

Pinchon  v.  Chilcott 

126,  127 

V.  Hill 

440 

Pindar  v.  Wadsworth 

254 

V.  Judson 

180,  182 

Pinley  v.  Bagnall 

139 

V.  Noyes 

242 

Pintard  v.  Tackington 

156, 520 

V.  Sayward 

265, 589 

Pippett  V.  Hearn 

449 

V.  Wheeler 

39 

Pirie  v.  Antlerson 

378 

Porthouse  v.  Parker 

164 

Pitcher  v.  Bailey 

115 

Portland  Bank  v.  Stubbs 

642 

V.  Livingston 

264 

Dry  Dock,  &c.  Co. 

u.  Port- 

V.  Tovey 

239 

land 

279 

Pitkin  V.  Frink 

104 

Postlethwaite  v.  Mounsey 

347 

Pitt  V.  Chappelow 

164,  165 

V.  Parkes 

88,  574 

V.  Donovan 

428 

Postmaster-Gen.  v.  Furber 

533 

V.  Smith 

300 

V.  Ridgway 

292 

V.  Yaldon 

144 

Pothonier  v.  Dawson 

645 

Pittman  v.  Foster 

441 

Pott  V.  Cleg 

112 

Pitts  V.  Gaince 

226 

V.  Eyton 

481 

V.  Tilden 

263 

Potter  V.  Lansing 

599 

Planche  v.  Fletcher 

396 

V.  Morland 

251 

Planck  V.  Anderson 

599 

V.  Suffolk  Ins.  Co. 

391 

Piatt  V.  Tuttle 

644 

V.  Taylor 

242,  518 

Pleasant  v.  Benson 

324 

V.  Tyler 

200 

Plenty  v.  West 

681 

V.  Webb 

672 

Plomer  v.  Long 

529,  534 

Potts  V.  Ward 

79 

Pluckwell  V.  Wilson 

220 

Pouverin  v.  Louis.  State  Ins. 

Co.       379 

Plumer  v.  Merchant 

349 

Powell  V.  Deveney 

232  6 

V.  People 

302 

V.  Gudgeon 

387 

Plummer  v.  Brown 

643 

V.  Henry 

64  a 

V.  Dennett 

449 

V.  Little 

518 

V.  Gheen 

455 

V.  Powell 

463 

Plunkett  V.  Cobbett 

418 

V.  Waters 

207 

V.  Penson 

360 

Power  V.  Butcher 

113 

Plymouth  v.  Carver 

242 

V.  Wells 

103 

Pocock  V.  Billings 

200 

Powers  V.  Russell 

297 

Poignard  v.  Smith 

430,  457 

Powley  V.  Newton 

338 

Polirlase  V.  Oliver 

601 

V.  Walker 

105,  251 

PolluU  V.  Walter 

230  rt 

Pownall  V.  Ferrand 

44 

Pollard  V.  Barnes 

545 

Poynton  v.  Forster 

452 

V.  Shaaffer 

240 

Pratt  V.  Ayler 

272 

Pomeroy  v.  Trimper 

561 

V.  McCullough 

674 

Pond  V.  Williams 

444, 531  a 

V.  Putnam 

66,  141 

Ponsonby  v.  Adams 

259 

V.  Sanger 

659  a 

liv 


INDEX   TO    CASES    CITED. 


Section 

Pratt  V.  Swaine  435 

V.  Thomas  106,  2G0 

Pray  v.  Maine  518 

V.  Pierce  556 

V.  Waterston  686 

Prescott  V.  Finn  65 

V.  Hubbell  249 

V.  Trueman  241,  242,  244 

V.  Wright  635  a,  642 

Presgrave  v.  Saunders  563 

Preston  v.  Boston 

V.  Christmas 
Prettyman  i;.  Waples 
Price  V.  Ilewctt 
V.  Mai-sh 
V.  Neale 
Prichard  v.  Campbell 
Prideaux  v.  Collier 
Pridgeu  v.  Pridgen 
Priest  V.  Cummings 
Priestley  v.  Fowler 
Prince  v.  Wilbourn 
Pringle  v.  Wernham 
Pritchard  v.  Atkinson 
V.  Brown 
V.  Papillion 
V.  Powell 
Probate  v.  Knouth 
Procter  v.  Hodgson 
Proctor  V.  Lainson 

V.  Proctor 

V.  AV^illiams 
Propr's  of  Kennebec   Purchase 
V.  Boulton 
V.  Springer 
Propr's  Trent  Nav.  v.  Wood 
Prossar  v.  Woodward 
Prosser  v.  Chapman 
Provender  v.  Wood 
Provost  V.  Calder 
Pry  or  v.  Coggin 
Piickford  r.  Maxwell 
Piijolas  V.  Holland 
Pullen  V.  Hutchinson 
Purcell  i;.  Macnaaiara 
Purdy  V.  Austin 
V.  Powers 
Purnel's  case 
Pursell  V.  Horn 
Purvcs  V.  Landell 
Putnam  i;.  Bowkcr 

V.  Mercantile  Ins.  Co. 

V.  Putnam 

V.  Ritchie 

V.  Tillotson 

r.  Wyley 
Putnam  Free  School  v.  Fisher 


111 

28,  31 

338 

368 

64 
122 
624 
205 
674 

19 
232  a 

67 
471 
242 
295 
253 
538 
365 
658 
583 

52 

78 

277 

23 

219 

562 

26 

110 

233 

681 

520 

274 

11  b 

454 

440 

480 

28 

84 

144 

660 

379 

48,  460 

549 

251 

614 

557 


453 


Section 
Putney  v.  Lapham  24 

Pynchon  v.  Stearns  656 


Q. 

Quarles  v.  Littlepage  342 

V.  Porter  141 

Quarman  v.  Burnett  232  a 

Queen,  The,  v.  Millis  460 

Quimby  v.  Buzzell  295 

V.  Melvin  74 

Quincy  v.  Rogers  681 

Quinebaug  Bank  v.  Tarbox  26 

Quinn  v.  Fuller  171,  478 

V.  Kimball  561 


Rackham  v.  Jessup 

618 

Radkin  v.  Powell 

561 

Rains  v.  McNarry 

646 

Rainwater  v.  Durham 

365 

Rambler  v.  Tryon 

690 

Ramchander  v.  Hammond 

447 

Ramsdell  v.  Soule 

112 

Ramuz  v.  Crowe 

156 

Rand  v.  Sargent 

621 

Randall  v.  Cleveland 

651 

V.  Everest 

258 

V.  Randall 

45 

V.  Rich 

113 

V.  Ilotch 

249 

V.  Sweet 

365 

V.  Van  Vecten 

62 

Randle  v.  Webb 

95 

Kandleson,  Ex  pm-te 

53 

V.  Murray 

232  a 

Randolph  v.  Kinney 

240 

Rankin  v.  Roler 

292 

Rapp  V.  Palmer 

251 

Rapson  v.  Cubitt 

232  a 

Ratcliir  V.  Huntley 

272 

Rathbone  v.  Orr 

491 

Ratlibun  v.  Rathbun 

297 

Ravenga  v.  Mcintosh 

459 

Ravenscroft  v.  Hunter 

681 

Rawlins,  In  re 

676 

llawlinson  v.  Clarke 

481 

Rawson  v.  Morse 

625 

Ray  V.  Law 

449 

V.  Hill 

678 

V.  Lines 

539  a 

V.  Walton 

675 

Raymond  v.  Baai 

124,523 

V.  Bearnard 

104 

V.  Merchant 

520 

INDEX   TO   CASES   CITED. 


Iv 


Section 

Section 

Rayne  v.  Orton 

31 

Revill  V.  Satterfit 

576 

Reab  v.  McAllister 

136 

Rew  V.  Barber 

523 

Read  v.  Bertrand 

38 

Rexv.  Almon 

64,416 

V.  Dunsmore 

11  d 

V.  Barr 

663 

V.  Golden 

603 

V.  Beare 

416 

V.  Spaulding 

219 

V.  Benedict 

660 

Ream  v.  Rank                        88, 

22G,  273 

V.  Bigg 

62 

Reay  v.  Packwood 

207 

V.  Bp.  of  Chester 

121 

V.  White 

30 

V.  Bliss 

,663 

Reddie  v.  Scoolt 

578 

V.  Bramley 

151 

Reddington  v.  Farrar 

■    11  rt 

V.  Brampton 

463 

Redman  v.  Hendricks 

563 

V.  Burdett 

416 

V.  Wilson 

387 

V.  Claphan 

363 

Reece  v.  Rigby 

144 

V.  Commerell 

450 

17.  Taylor 

95 

V.  Dawes 

471 

Reed  v.  Batchelder 

367 

V.  Downshire 

659 

V.  Bias 

272 

V.  Gutch 

416 

V.  Cutter 

492,  507 

V.  Hermitage 

544 

V.  Davis 

89,  269 

V.  Horseley 

641 

t7.  McGrew 

124 

V.  Hudson 

UO 

V.  Prentiss 

136 

V.  Hunt 

39 

V.  Price 

626 

V.  Johnson 

416 

V.  Taylor 

149,  454 

V.  Johnston 

416 

V.  Upston 

520 

V.  Kettleworth 

450 

Reedy  v.  Seixas            / 

189 

V.  Leake 

660 

Reel  V.  Reel 

690 

V.  Lloyd 

660,  664 

Rees  V.  Marq.  of  Headfort 

172 

V.  Longnor 

295 

V.  Waters 

76,  78 

V.  Lutl'e 

150 

Reeves  v.  Morris 

561 

V.  Navestock 

251 

Reggio  V.  Braggiotti 

262 

V.  Nichol 

92 

Regina  v.  Cotesworth 

84 

V.  Pierce 

415 

V.  East  Mark 

662 

V.  Rosinski 

82 

V.  Hill 

371  a 

V.  St.  George 

284 

V.  James 

82 

V.  St.  James 

665 

i'.  Leicestershire 

236 

V.  St.  Michael's 

239 

V.  Lovett 

416 

V.  Sheward 

627 

V.  INIoreau 

90 

V.  Smith 

450 

V.  Newton 

461 

V.  Stannard 

426 

V.  Petrie 

662 

V.  Sutton 

412 

V.  Robins 

577 

V.  Tippett 

544 

V.  Simonsto 

49,  461 

V.  Walter 

416 

V.  Upton 

461 

V.  Watson 

193,416 

u.  Watts 

472 

V.  Woodfall 

416 

Rehoboth  v.  Hunt 

11  a 

V.  Wright 

660 

Reid  V.  Furnival 

205 

Reynolds  v.  Kennedy 

457 

V.  Payne 

187 

V.  Ocean  Ins.  Co. 

392 

Reignolds  v.  Edwards 

660 

Rliind  V.  Wilkinson 

380,  389 

Reilly  v.  Jones 

258, 259 

lyiodes  V.  Vinson 

681,  688  a 

Reinliold  v.  Albert! 

141 

Rice  V.  Hollenbeck 

276 

Relyea  v.  Ramsay 

80 

V.  Hosmer 

433,  586 

Remelee  v.  Hall 

81 

V.  Stearns 

206 

Remington  v.  Congdon 

421 

V.  Thompson 

292 

Renard  v.  Fiedler 

123 

V.  Tower 

405,  408 

Renner  v.  Bk.  of  Columbia 

156, 188 

Rich  V.  Jones 

106 

Respublioa  v.  De  Longchamps 

84 

V.  Lambert 

220 

V.  Roberts 

48 

V.  Topping 

203 

Revett  V  Brown 

618 

Richards  v.  Gilbert 

219 

.VI 


INDEX  TO   CASES   CITED. 


Section 

Section 

Richards  v.  Lond.,  &c.  Railw. 

221 

Roberts 

V.  Bayles 

465 

V.  Peake 

626 

V.  Bethell 

161 

V.  Richards           309 

354,  424 

V.  Bradshaw 

191 

Richardson  v.  Allan 

166,  207 

V.  Camden 

417 

V.  Anderson 

66,  393 

V.  Carr 

664 

V.  Atkinson 

642 

V.  Connelly 

572 

V.  Boston  Chem.  Lab.      605  | 

V.  Elliot 

686 

17.  Chassen 

253,  268 

V.  Gallagher 

523 

V.  Dorr 

341 

V.  Jackson 

800 

V.  Duncan 

111,  121 

V.  Karr 

625 

V.  Field 

330 

V.  Randel 

560 

V.  Gilbert 

512 

V.  Reed 

434 

V.  Hall 

114 

V.  Round 

682 

V.  Hespy 

480 

V.  Trawick 

597,  688 

V.  Jackson 

605 

V.  Wentworth 

688 

V.  Maine 

390 

V.  Whiting 

556 

V.  Maryland  Ins.  Co.       432  | 

V.  Wood 

847 

V.  Reed 

560 

V.  Wyatt 

637 

V.  Richardson 

44 

Robertson  v.  Barber 

686 

Richmond  v.  Heapey 

480 

V.  Cole 

463 

Richter  v.  Selin 

190,483 

V.  Crane 

644 

Rickert  v.  Snyder 

244 

V.  Ewer 

387 

Rickets  v.  Salway 

544 

V.  Fleming 

148 

Riddle  v.  Sutton 

347 

V.  French 

378 

Rider  v.  Ocean  Ins.  Co. 

379 

V.  Kennedy 

295 

Ridgway  v.  Day 

190 

V.  Lynch 

104 

Ridley  v.  Taylor 

203 

V.  McNeil 

79 

V.  Tindall 

32 

V.  Money 

877 

Rigden  v.  Walcott 

275 

Robeson  v.  Ganderton 

131 

Rigg  V.  Curgenven                49, 

286,  461 

Robinson  v.  Alexander 

447 

Riggs  V.  Denniston 

427 

V.  Ames 

195 

V.  Thatcher 

584 

V.  Austin 

208,  642 

Right  V.  Bawden 

327 

V.  Baker 

208 

V.  Cuthell 

323 

V.  Bland 

38 

V.  Price 

674, 678 

V.  Burleigh 

431 

Riley  v.  Gei-rish 

163 

V.  Cone 

94,  267 

V.  Water  Power  Co. 

637 

V.  Cook 

605 

Ringgold  V.  Dunn 

440 

V.  Dunmore 

210 

Ripley  v.  Colby 

481 

V.  Ferreday 

605 

V.  Dolbier 

642 

V.  Gould 

801,  302 

Rippon  V.  Norton 

109 

V.  Mansfield 

621 

Rising  V.  Stannard 

615, 622 

V.  Manuf.  Ins.  Co. 

383 

Risley  V.  Baltinglass 

68G 

V.  McDonald 

641 

Rison  V.  Berry 

73 

V.  Read 

523 

Rist  V.  Faux 

573 

V.  Ward 

148 

Ritchie  V.  Putnam 

19 

V.  Yarrow 

164, 165 

Ritchey  v.  Davis 

453 

Robison  V.  Borman 

616 

Ritgt-r  i;.  Parker 

660 

V.  Gosnold 

108 

Rivurs  I'.  GrifTith 

608 

V.  Otis 

140,  443 

Rivit-re  v.  Bower 

471 

V.  Swett 

311 

Roach  j;.  Ostler 

160 

Robson 

V.  Godfrey 

104 

V.  Wad  ham 

240 

V.  Rolls 

642 

Robblns  v.  Horinan 

616 

Rochdale  Canal  v.  Radcliffe 

543 

V.  Farley 

440 

Rock  V 

Lay  ton 

347 

V.  Otis 

440,  443 

Rockwell  V.  Saunders 

561 

V.  Willard 

4H4 

Rockwood  V.  Allen 

253 

Robert  V.  Garnie 

530 

V.  Wilson 

467 

INDEX   TO   CASES   CITED. 


Ivii 


Section 

Section 

Koden  v.  Ryde 

158 

Rotan  V.  Fletcher 

648 

Eodgers  v.  Nowill 

253 

Rotch  V.  Hawes 

642 

Rodney  v.  Strode 

277 

Rotherham  v.  Green 

544 

Rodriguez  v.  Tadmire 

454,  458 

Rouse  V.  Southard 

448 

J4oe  V.  Charnock 

251 

Rowcroft  V.  Lomas 

443 

V.  Gore 

462 

Rowe  V.  Young 

174 

';.  Harvey 

303 

Rowell  V.  Montville 

660 

I).  Lonsdale 

317 

Rowland  v.  Veal 

597,629 

V.  Lord 

309 

Rowlands  v.  Springett 

189 

V.  Rowlston 

438 

Rowley  v.  Ball 

156 

V.  Summersett 

315 

V.  Home 

216 

V.  Swazey 

357 

RoTvorth  V.  Wilkes 

514 

V.  Wiggs 

324 

Rowson  V.  Earle 

142 

d.  Wood  V.  Doe 

73 

Royce  v.  Burrell 

357 

Rogers  V.  Arnold 

561,  563 

Ruan  V.  (Jardiner 

252 

V.  Clifton 

419 

Ruble  V.  Turner 

20 

V.  Crombie 

265 

Rucker  v.  Hiller 

195 

V.  Dan  forth 

237 

Ruckniaboye  v.  Mottichund 

437 

V.  Fales 

268  a 

Rutley  V.  Henderson 

638 

V.  Hoskin 

26 

Rugby  Charity  v.  Merryweath 

iT        660 

V.  Imbleton 

226 

Rugg  V.  Barnes 

640 

V.  McCune 

64 

Ruggles  V.  Keeler 

439 

V.  Pitcher 

565 

V.  Lawson 

297 

V.  Rogers 

51,  672 

V.  Lesure 

625 

V.  Stephens 

107 

Rulton  V.  Rulton 

41 

V.  Sumner 

587 

Kuncorn  v.  Doe 

545 

Rogers's  case 

372 

Rundle  V.  Little 

625 

Rohan  V.  Hanson 

533 

Rundlett  i'.  Small 

531 

Rolfe  V.  Peterson 

259 

Runyan  v.  Nichols 

136, 143 

Rollins  V.  Clay 

616 

Ruoli"'s  Appeal 

6  74 

Rolt  V.  Watson 

156,520 

Rushby  V.  Scarlett 

65 

Rooke's  case 

560 

Rushworth  v.  Taylor 

645 

Rooke  V.  Midland  R.  Co. 

208 

Russ  0.  Butterfield 

597 

Rookwood's  case 

109 

V.  Mebius 

300 

Roop  r.  Brubacker 

78 

Russell  V.  Blake 

337 

Root  V.  Chandler 

614,  621 

V.  Boehm 

380 

V.  Fellows 

291  a 

V.  Coffin 

295 

V.  King 

275 

V.  Falls 

678 

Roper  v.  Harper 

86 

V.  Jackson 

658 

Ropes  V.  Barker 

273 

V.  Ledsam 

489 

Rordasnz  v.  Leach 

167,478 

V.  Lewis 

556 

Rose  V.  Bryant 

291,  444 

V.  Livingston 

211 

V.  Groves 

474 

V.  Lytle 

31 

V.  Story 

253 

V.  Palmer                 145 

148,  270 

V.  Wilson 

98,  100 

V.  Skipwith 

19 

Roseboom  v.  Billington 

291 

V.  S.  Britain  Soc. 

103 

Rosewell  v.  Prior 

472 

V.  The  Men  of  Devon 

473 

Roskell  V.  Waterhouse 

209 

V.  Tomlinson 

277 

Ross  V.  Clifton 

78 

V.  Turner 

599 

V.  Gould 

430,  558 

Rust  V.  Baker 

355 

V.  Hunter 

390 

Rustell  V.  Macquister 
Rutherford  v.  Evans 

418 

IT.  Innis 

459 

414 

V.  Johnson 

213,  642 

V.  Mclvor 

123 

V.  Lapham 

424 

Rutland's,  Countess  of,  case 

649 

V.  Milne 

109 

Ryan  v.  Clarke 

626 

V.  Ovoton 

78 

V.  Cumberland,  &c.  R.  R.      232  b 

V.  Philbrick 

629 

V.  Goodwin 

489. 493 

Iviii 


INDEX   TO    CASES   CITED. 


Kyder  v.  Ld.  Townsend 
Rynes  v.  Clarkson 


Section 
681 


S. 

Sackett  V.  Owen 
Sackrider  v.  McDonald 
Sadler  v.  Evans 
Sallbrd  t'.  Annis 
Sage  V.  Ensign 

Sa-'cr  V.  rortsinouth  R.  11.  Co. 
"      I'.  P.  S.  &  P.  llailw.  Co. 
Salem  Bunk  v.  Gloucester  Bank 


Salisbury  v.  (iousgas 

i;.  Hale 
Sallows  V.  Girling 
Salmon  v.  Ilorwitz 

I'.  Smith 
Salomons  v.  Stavely 
Saltm;irsli  v.  Tuthill 


78 
27D 
124 
243 
441 
215 
218 
C8, 
124,  1.59,  523 
642 
18G 
74 
649 
133 
155 
189 

Saltons  I'.  Commercial  Ins.  Co.  401 

Sampson  t;.  Coy  2/1,  273 

V.  Easterby  240 

V.  Henry  89,  618 

V.  Smith  97 

Sanborn  v.  Baker  587 

V.  INIoi-rill  64 G 

V.  Neilson  51 

V.  Southard  190 

Sandback  v.  Thomas  456 

Sanderson  v.  Busher  383,  384 

V.  Lamberton  209 

Sandford  v.  Dillaway  195 

V.  Mickles  199 

Sands  v.  Gelston  441,  442 

Sandwich  v.  Fish  533 

Sanlbrd  v.  Bennett  421 

V.  Clark  37,  443 

V.  (Jaddis  414 

Santee  v.  Keister  317 

Sapsfbrd  v.  Fletcher  5iJ7 

Sar.-U  V.  Wine  168,  34  2 

Sargent  y.  Ailams  lo.) 

V.  Ai>{)leton  201 

V.  Balhird  539,  513 

V.  Blunt  640 

V.  Franklin  Ins.  Co  261 

V.  Earned  506 

V.  Morris  212 

V.  Robbin3  163 

I'.  Southgate  200 

Sartwell  v.  llorton  121 

Sa'iportas  v.  Jennings  301 

Satterlee  i^.  Frazer  141 

Satterthwaite  v.  Dewhurst  575 


Saunders  v.  Darling 
V.  Edwards 
V.  Frost 
V.  Graham 
V.  Mils 
V.  Saunders 
Saunderson  v.  Baker 
V.  Bell 
V.  NichoU 
Savage  v.  Brewer 
V.  Lane 
V.  Smith 
Savery  v.  Goe 
S;ivill  ;;.  Barchard 
Saville  v.  Roberts 

V.  Robertson 
Savory,  In  re 

V.  Chapman 
Sawtelle  v.  Jewell 
Sawyer  v.  Kendall 
V.  Mercer 
Saxton  V.  Johnson 
Sayer  v.  Kitchen 
Sayle  v.  State 
Sayles  v.  Briggs 
Say  re  v.  E.  of  Rochford 
Scales  V.  Jacob 
Scarce  v.  Whittington 
Scheibel  v.  Fairbain 
Schenck  v.  Cuttrell 


Section 

5»6 
433 
605 
604 
424 
434 
580,  582,  621 
518 
346,  348 

449,  457 
347 
596 
607 
252 
449 
483 
6  74 
141 

20 

543,  557 

348 

112 

161 

22 

450,  452 
96,  633 

440 

139 

453 

239  b 


V.  Mercer  Co.  &c.,  Ins.  Co.  406 

Schermerhorn  v.  Van  Volkeuburgh  648 

Schloss  V.  Cooper  614 

Schlosser  v.  Lesher  431 

Scholey  ;;.  Walsby  1 70 

V.  Walton  441 

Scholfiehl  y.  Bayard  195 

Schopman  v.  Boston  &  W.  R.  R.  Co.  222 

Schuehardt  v.  Aliens  68 

Schultz  V.  Astley  164 

Scott  V.  Brest  284 

V.  Elnicndorf  141 

V.  Galloway  295 

V.  Hull  247 

V.  INIcLellan  203 

V.  Nelson  107 

V.  Nichols  435 

V.  Ray  536 

V.  Shepherd  84,  94,  226 

V.  Simpson  455 

V.  Waithman  586 

V.  AVilson  457 

Scotthorn  v.  South  Staff  210 

ScoviUe  V.  Griflith  208 

Scrimsliire  v.  Scrimshire  460 

Scripture  v.  Lowell,  &c.  Ins.  Co.  387,  407 

Scruby  v.  Fordham  681 


INDEX   TO    CASES   CITED. 


lix 


Section 

S( 

action 

SiTugham  V.  Wood 

297 

Sharrod  v.  The  Lond.,  &c 

R.  Co. 

224 

Sc  udder  v.  Worster 

561 

Shattuck  V.  Allen 

411, 

421 

Scurry  v.  Freeman 

284 

V.  Maley 

457 

Seager  v.  Slingerland 

578 

Shaver  v.  Ehle 

206 

Seago  V.  Deane                    107, 

126,  127 

Shaw  V.  Becket 

117, 

265 

T           * 

Seamans  v.  Loring 

382 

V.  Broom 

200 

Searight  v.  Calbraith 

603 

V.  Crawford 

539 

Searle  v.  Price 

45 

V.  Dartnall 

118 

Sears  v.  Dillingham 

691, 692 

V.  Mitchell 

251 

V.  Lyons 

272 

V.  Neville 

676 

Seaver  v.  Dingley 

560,  561 

V.  Nudd 

261 

V.  Lincoln 

179,  188 

V.  Picton 

118,  530, 

636 

V.  Phelps 

369, 370 

V.  Reed 

68 

V.  Seaver 

113 

V.  Robberds 

405 

408 

Sea-ward  v.  Lord 

443 

V.  Stone 

64  a 

Secor  V.  Babcock 

455 

V.  Tunbridge 

594 

Seddon  v.  Senate 

243 

V.  Woodcock 

121 

Sedgwick  v.  Ilollenbaek 

241,  243 

Shearer  v.  Ranger 

242 

Sedley  v.  Sutherland 

86,  624 

Slieckell  v.  Jackson 

421 

424 

Seers  v.  Hind 

245 

Shed  0.  Brett 

193 

Seibert  v.  Mc  Henry 

563 

Shedd  V.  Wilson 

533 

V.  Price 

454,  455 

Sheels  v.  Davies 

136 

Seighman  v.  Marshall 

51S 

Shelby  v.  Hearne 

240 

Selby  V.  Bardons 

95 

Sheldon  v.  Payne 

582 

58  7 

Selden  v.  Beale 

118 

V.  Soper 

640 

V.  Hickock 

646 

Shelley's  case 

346 

Selkirk  v.  Adams 

75 

Shelton  v.  Bralthwalte 

189 

Sellers  v.  Holman 

528 

Shepard  v.  Johnson 

261 

V.  Till 

412 

V.  Merrill 

274 

Senhouse  v.  Christian 

471 

Shepherd  v.  Briggs 

78 

Sentance  v.  Poole 

370 

V.  Hampton 

261 

Sergeson  v.  Sealey 

278  d 

V.  Temple 

136 

Seton  V.  Low                     > 

396 

V.  ^Vatrous 

78 

Severance  v.  Kimball 

302 

Sheppard  v.  Sheppard 

651 

Severin  v.  Keppell 

642 

SherilFy.  Wilkes 

1.^.9 

Severn  v.  Keppel 

644 

Sheriirs  of  Norwich  v.  Bradshaw 

590 

Sewall  V.  Sparrow 

291  a 

Sherman  v.  Connecticut  R.  Bridge 

11  a 

Seyds  V.  Hay 

642 

Sherrow  v.  Wood 

78 

Seymour  v.  Maddox 

232  i 

Sherry  v.  Schuyler 

63.5  a 

V.  McCormick 

496, 507 

Sherwood  v.  Sutton 

448 

V.  Mintern 

28 

Shewell  v.  Fell 

599 

V.  Van  Slyck 

529,  530 

Shilock  V.  Passman 

144 

Seymour's  case 

682 

Shipley  v.  Todhunter    ■ 

416 

,421 

Shadwell  v.  Hutchinson 

469 

Shipwick  V.  Blanchard 

648 

Shafer  v.  Smith 

89,  273 

Shires  v.  Glascock 

6  78 

Shaf her  v.  State 

460 

Shirley  v.  Todd 

200 

Slialler  v.  Brand 

679 

Shitler  v.  Bremer 

440 

Shamburg  v.  Commagere 

207 

Shock  V.  McChesney 

452 

Shank  v.  Case 

420 

Shoemaker  i*.  Benedict 

444 

Shannon  v.  Comstock 

261  a 

Shoman  v.  Allen 

142 

V.  Shannon 

561 

Shores  v.  Caswell 

141 

Shapleigli  v.  Pilsbury 

556 

Shorland  v.  Govett 

622 

Sbaip  V.  Bailey 

195 

Short  V.  McCarthy 

433,435 

,448 

V.  Grey 

221,  222 

V.  Pratt 

74 

V.  Hawker 

147 

Shortley  v.  Miller 

420 

,  426 

V.  United  Ins.  Co. 

378 

Shott  v.  Strealfield 

484 

V.  VVhlttenhall 

560 

Shotwell  V.  Few 

645 

k 


INDEX   TO   CASES   CITED. 


Section 

Shove  V.  Webb      _  124 

Slirewsburv  v.  Smith  618 

Shult  V.  Baker  651 

Shuniway  v.  Holbrook  692 

Sliurman  y.  Wells  212 

Slmte  V.  Barrett  269 

Shut  tie  worth  v.  Stephens  206 

Sibley  v.  Lambert  440,  444 

V.  Phelps  444 

Sibree  v.  Tripp  28 

SIcard  V.  Davis  29G 

Sice  V.  Cunningham  199 

Sickles  V.  Mather  445 

Sidfurd  V.  Chambers  165 

Sigfried  v.  Levan  295 

SJLrirers  V.  Brown  195 

Sike^j  V.  Johnson  270 

Sill  V.  Rood  135 

Silloway  v.  Brown  618 

Silsby  V.  Foote  507 

Simister's  Patent  496 
Simkins  i'.  Norwich,  &c.  Steamboat 

Co.  210 

Simmons  v.  Anderson  638 

V.  Bradford  145,  599 

V.  Norton  656 

V.  Simmons  42 

V.  SwiJ't  638 

V.  Wilmott  605 

Simon  V.  Bradshear  141, 

Simonds  v.  White  393 

Simonton  v.  Barrell  141 

Simjjson  v.  Bowden  108 

V.  Eggington  518 

V.  Lethwaite  659 

V.  McCailrey  267 

V.  Morris  84,  98 

V.  Robinson  418,  422 

V.  Swan  117,  118 

V.  Walker  687 

Sims  I'.  Davis  539 

I'.  McLi'udon  454 

Sinclair  v.  Kldred  453,  456 

V.  Jackson  331 

Six  Carpenters'  case  270,569,  607,  615, 

622,  628 

Skaife  17.  Jackson  517 

Skee  V.  Coxson  79 

Skehiing  v.  Warren  204 

Skflfon  ('.  Ilawling  347 

Skcvill  V.  Avery  98 

Skillii.  V.  Merrill  14 

Skilton  V.  Winslow  160 

Skinner  v.  Stocks  109,  478 
V.  Lond.,  &c.  Railway  Co.     222 

V.  IJpshaw  648 

Slaney  v.  Wade  462 


Section 

Slater  v.  Jepherson  557 

V.  Rawson  240,  554 

V.  Swann  231 

Slaughter  v.  Barnes  582 

Sle(ige  V.  Pope  89 

Slegg  V.  Phillips  204 

Sleght  V.  Kane  437 

Slingerland  v.  Morse  603 

Sliver  v.  Shelbeck  362 

Sloman  v.  Cox  523 

V.  Heme  584 

V.  Walter  258 

Slosson  V.  Beale  258,  259 

Sluby  ?'..  Champlin  441 

Sly  V.  Edegely  232  a 

Small  u.  Gibson  400 

V.  Gray  451 

V.  Proctor  430,  558 

V.  Small  672,  675 

V.  Smith  172 

Smallcourt  v.  Cross  593 

Smart  v.  Hutton  580 

Smedley  v.  Hill  348,  349 

Smeed  v.  Ford  256 

Smith  V.  Allison  51 

V.  Anders  601 

V.  Ashley  421 

V.  Atlantic,  &c.  Ins.  Co.  26 

V.  Bank  of  Washintrton  186 

V.  Barrow                 ^  338 

V.  Bartholomew  519 

V.  Birmingham  Gas-Light  Co.  62 

V.  Bonsall  672 

V.  Bossard  114 

V.  Bowditch  147 

v.  Bowditch,  &c.  Ins.  Co.         406 

V.  Bromley  121 

V.  Bi'own  28 

V.  Chester  165,  166 

V.  Compton  113,  114,  116 

V.  Dedham  468 

V.  De  Wruitz  200 

V.  Dickenson  258 

V.  Dovers  19 

V.  Eastman  440 

V.  Ege  455 

V.  Ely  489 

V.  Fox  433 

V.  Fuge  378 

V.  Goodwin  226 

V.  Hart  599 

V.  Higbee  660 

V.  Hill  439 

V.  Hodson  108 

V.  Ilollister  414 

V.  Jewett  (i56 

V.  Jones  (i86 


INDEX   TO   CASES   CITED. 


Ixi 


Section 

Bection 

Smith  V.  Kelley 

367 

Snow  V.  Franklin 

28 

V.  Knapp 

599 

V.  Perry 

522,  601 

V.  Knowelden 

\ld 

V.  Snow 

53 

V.  Lipscomb 

142 

V.  Ware 

136,  261 

V.  Lloyd 

557 

Snowball  v.  Goodricke 

583 

V.  Lord 

160 

Snowden  v.  Davis 

121 

V.  Lovett 

270 

Snyder  v.  Andrews 

424 

V.  Lusher 

478 

Sohier  v.  Loring 

201 

V,  Macdonald 

457 

V.  Norwich  Fire  Inn. 

Co.         406 

V.  Marsack 

164 

Soilleaux  v.  Soilleaux 

41,  46 

V.  ]Mayo 

367 

Solomon  v.  Turner 

199 

V.  Mc Campbell 

242 

Solomons  v.  Dawes 

645 

V.  IMcClure 

14, 160 

V.  Medex 

227 

V.  McManus 

183 

V.  The  Bank  of  E 

ngland    172 

V.  Mercer 

122 

Soltau  V.  De  Held 

473 

V.  Milk's 

339, 614 

Somers  v.  Balabrega 

141 

V.  IMoore 

209 

Somervill  v.  Hawkins 

421,  422 

V.  Nilsen 

114 

Somes  V.  Skinner 

240,  317 

V.  Oliphant 

365 

Sommer  v.  Wilt 

253, 449 

V.  Pickering 

166 

Soulden  v.  Van  Rensselaer 

431 

V.  Plomer 

640 

Soulesby  ii.  Hodgson 

73 

V.  Potter 

78 

Soule  V.  Bonney 

302 

V.  Robertson 

372 

Southard  v.  Rexford 

253 

V.  Royston 

626 

Southey  i'.  Sherwood 

515 

V.  Rutherford 

224,  623 

Southwick  V.  Estes 

68 

V.  Scott 

387 

V.  Hayden 

517 

V.  Screven 

529 

Southworth  v.  Smith 

601 

V.  Sear 

164 

Soward  v.  Leggett 

245  a 

V.  Shackleford 

452 

Spalding  v.  Vandercook 

136 

V.  Shaw 

434 

Sparhawk  v.  Bartlett 

586 

V.  Shepherd 

219 

V.  Bullard 

307 

V.  Sherman 

256 

Sparks  r.  Purdy 

643 

V.  Smith  104,  112, 

220,  259,  473, 

Sparrow  v.  Chrisman 

480 

527 

Spalding  v.  Barnes 

642 

V.  Spooner 

428 

Spear  v.  Newell 

35,  39 

V.  State 

662 

Speed  V.  Buford 

554 

V.  Steele 

672 

Speight  V.  01i^'iera 

574 

V.  Taylor 

412 

Spence  v.  Healey 

236 

V.  Wait 

681 

Spencer  r.  Billing 

483 

V.  Webb 

279 

t'.  Daggett 

219 

V.  Westmoreland 

444 

V.  Halstead 

261 

V.  Whiting 

74,  189,  190 

V.  Hartford 

524 

V.  Wigley 

533 

V.  Marriott 

243 

V.  Williams 

379 

XK  Tilden 

258 

V.  Williamson 

561 

Spencer's  case 

240 

V.  Wood 

415,  421 

Sperry  v.  Ricker 

74 

17.  Wright 

219,  249,  481 

Spies  V.  Newbury 

186 

V.  Young 

644 

Spooner  v.  Rowland 

520 

Smith's  Heirs  v.  Dixon 

141 

Spoor  V.  Holland 

637 

Smithson  v.  Garth 

277 

Sprague  v.  Baker                149,  240,  244 

Sraithwick  v.  Ward 

93 

V.  Kneeland 

563 

Smout  V.  Ilberry 

230  a 

V.  Waite 

660,  662 

Saiyrl  v.  Niolon 

219,  377 

Spratt  V.  Spratt 

19 

Snell  V.  Phillips 

431 

Spring  V.  Coffin 

124 

V.  Snell 

300 

V.  Gray 

447 

V.  Snow 

417 

V.  Haskell 

220 

Snow  V.  Allen 

459 

Springfield  v.  Hampden 

660 

Ixu 


INDEX   TO   CASES   CITED. 


Section 

Sprowl  V.  Kellar 

219 

Spybey  v.  Hide 

608 

Squire  v.  Ilollenbeck 

272,  635  a 

St;iak  V.  Sii^clkow 

300 

Staats  V.  Ton  Eyck 

2G4 

Stacey  v.  IMiller 

662 

r.  Smith 

662 

Stackhouse  v.  O'Hara 

141 

Stacv  V.  Vt.  Cen.  R.  R. 

135 

Staflord  v.  Clark 

231 

Stallbril  Canal  Co.  v.  Hallen  4  7.3 

Stammers  v.  Dixon  615 

Stanard  v.  Eldridge  242 
Standcn  v.  Standea                     151,  461 

Stanley  v.  Barnes  668 

V.  Gaylord  615 

V.  Kean  672 

V.  Per  ley  656 

I'.  Towgood  245  a 

V.  Webb  421 

Stannard  v.  UUithone  149 
Stante  v.  Priekett                    47,  86,  624 

Stanton  v.  Stanton  440 

V.  Wetberwax  689 

V.  Wilson  365 

Stan  wood  r.  Scovel  11  & 

Staple  V.  Spring  472 

Staples  V.  Harden  659  a 

V.  Okines  205  ^ 

Starbuck  v.  New  Eng.  Ins.  Co  400 

Staring  v.  Bowen  679 

Stark  V.  Barrett  304 

r.  Chesapeake  Ins.  Co.  19 

V.  Parker  136  a 

Starkey  v.  [Mill  109 

Starr  v.  Jackson  614 

State  Bank  v.  Hurd  194 

State,  The,  v.  Armfield  623 

V.  Bates  47 

V.  Bowles  153 

V.  Brunson  48 

V.  Bruntley  302 

V.  Camptun  660 

V.  Carver  662 

V.  Davis  84 

V.  Guild  363 

V.  Herman  150 

V.  Hunter  662 

V.  Marble  662 

V.  Miller  461 

V.  Nu.ld  662 

V.  Pearce  48 

V.  Richmond  867 

r.  Roswell  461 

r.  Spii-er  373 

17.  Wallace  48 

V.  Wclla  420 


Section 

State,  The,  v.  WInkley  462 

Stead  V.  Anderson  500 

V.  AVilliams  501  a 

Stearn  v.  Mills  347 

Stearns  v.  Barrett  258,  492 

V.  Haven  477 

V.  Hendersass  557 

V.  Stearns  440,  441 

Stebbing  v.  Spicer  163 

Stebbins  v.  Merritt  62 

Stedman  t'.  Gooch  520 

Steele  v.  Inland  W.  L  Nav.  Co.        473 

V.  Price  688  a 

V.  Steele  435 

Steffv  V.  Carpenter  543 

Stegall  V.  Stegall  150 

Stehman's  Appeal  39 

Steiimian  v.  Magnus  28,  30,  526 

Stephens  v.  Cady  513 

V.  Elwall  645 

V.  Mvers  82 

Stephenson  v.  Hart  212,  642 

V.  Walker  58 

Sterling  v.  Adams  454 

V.  Pcet  264 

Sterndale  v.  Hawklnson  533 

Stetson  I'.  Faxon  468 

V.  ]\Iass.  Ins.  Co.  408 

Stevens  v.  Beals  166 

V.  Fassett  459 

V.  Gladding  513 

V.  Lynch  207 

V.  Midland,  &c.  Railway 

Co.  449,  453 
V.  Reeves  251 
V.  Vancleve  674 
V.  Whistler  616 
Stevenson  v.  Lambard  240 
I'.  McReary  462 
Steward  v.  Scudder  251 
Stewart  r.  Doughty  615 
V.  Drake  242,  244 
V.  Martin  635  a 
V.  Wells  5C0,  583 
St.  George's  v.  St.  Margaret's  Par- 
ish      "  150 
St.  Helen's  Smelting  Co.  v.  Tipping  46  7 
.Stickles  V.  Arnold  78 
Stiles  V.  West  369 
I'.  White  262 
Still  V.  Ilalford  71,  73 
Stilson  V.  Tobey  280 
Stimpson  t".  Eggington  518 
t'.  Riiilroads  253 
Stimson  V.  Bait.,  &c.  R.  R.  506 
St.  John  V.  Standring  646 
V.  Van  Santword  210 


INDEX   TO    CASES   CITED. 


Ixiu 


Section 

Stoallings  v.  Baker  481 

Stock  V.  Mawson  121 

Stocker  v.  Brockelbank  481 

V.  Harris  403 

V.  Merrimack  Ins.  Co.  399 

Stockman  c.  Parr  189 
Stockport  Waterworks  Company  v. 

Potter  467 

Stoddard  v.  Kimball  199,  200 

Stoddart  v.  Palmer  584 

Stoever  v.  Whitman  249 

Stokes  n.  Bate  338 

V.  Brown  367 

V.  Lewis  114 

V.  Saltonstall  221 

Stockley  v.  Harnidge  453 
Stone  V.  Codman                      232  a,  276 
V.  Crocker        271,  449,  453,  454, 
455 

V.  Damon  690 

V.  Forsyth  315 

V.  Marsh  518 

V.  National  Ins.  Co.  390 

V.  Seymour  530 

V.  Sprague  601 

I'.  Stevens  449,  457 

V.  Swift  459 

V.  Varney  424,  425 

Stonehouse  v.  Elliot  99,  621 

Storer  v.  Logan  203 

V.  McGaw  608 

Story  I'.  Challands  421 

V.  Odin  471 

V.  Pery  366 

Story's  Ex'ors  v.  Holcombe  514 

Stoughton  V.  Lynch  529 

Stout  V.  Jackson  264 

V.  Prall  269 

V.  Wren  85 

Stowe  V.  Thomas  514 

Stoytes  r.  Pearson  246,  300 

Strang  v.  Holmes  28,  30 

Strange  v.  McCormick  232  a 

V.  Powell  279 

Strayhorn  v.  Webb  518 

Streeter  v.  Horlock  104 

t'.  Sumner  103 

Streetly  v.  AVood  421 

Strithoi-st  V.  Graeme  437 

Strohm's  Appeal  528 

Strong  V.  BUss  251 

V.  Harvey  605 

V.  Hobbs  625 

V.  Manuf.  Ins.  Co.  379 
V.  N.  Y.  Firem.  Ins.  Co.         393 

V.  Strong  69,  78 

V.  Williams  524 


Strout  V.  Berry 
Stuart  V.  Lovoll 

Section 
625 
418 

V.  Whittaker 

693 

Stubbs  V.  Lainson 

592 

V.  Parsons 

566 

Studdy  V.  Sanders 

104 

Stultz  V.  Dickey 

251,  615 

V.  Schaeffle 

688 

Sturge  V.  Buchanan 

193 

Sturges  V.  Bush 

37,  39 

V.  Longworth 

438 

Sturt  V.  Mellish 

44  7 

Sturton  i\  Richardson 

36 

Styart  v.  Rowland 

126,  127,  529 

Sullern  v.  Townsend 

615,  627 

Suffield,  Ld.,  v.  Bruce 

107 

Sufiblk  Bank  o.  Worcester  Bank       607 

Co.  V.  Hayden 

496 

Sullivan  v.  Holker 

342 

V.  Kelly 

150 

V.  Phihidelphia 

&  Reading 

Railw. 

222 

Sulston  V.  Norton 

287 

Sutiunersett  v.  Jarvis 

642 

Sumter  v.  Lehie 

332 

Surrey  Canal  v.  Hall 

660 

Sutcliffe  r.  Brooke 

69 

Sutton  V.  Buck 

378,  637 

V.  Clark 

434 

V.  Hawkins 

605 

V.  Johnstone 

271 

V.  Moody 
V.  Sutton 

620 
681 

V.  Toomer 

523 

V.  Waite 

586 

Swain  v.  Stafford 

455 

Swallow  V.  Beaumont 

300 

Swampscott  Machine  Co 

V.  Par- 

tridge 

251 

Swan  V.  Littlefield 

432 

V.  Swan 

550 

V.  Tappan 
Swartwout  v.  Payne 

420 
523 

Swayn  v.  Stephens 
Sweet  V.  Penning 

648 
512 

V.  Barney 

212 

V.  James 

528 

Sweeting  v.  Fowler 

163 

Sweetser  v.  French 

479 

Sweigart  v.  Lowmater 

39 

Swett  V.  Boardraan 

675 

V.  Patrick 

264 

Swift  V.  Barnam 

649 

V.  Barnes 

261 

V.  Bennett 

365 

V.  Stevens 

156 

Swindler  v.  HilUard 

215,  219 

Ixiv 


INDEX   TO   CASES    CITED. 


Swinfen  v.  Lord  Chelmsford 

V.  Swinfen 
Sykcs  V.  Dunbar 
Sylvester  v.  Ci-apo 
Symnions  v.  Blake 
Symonds  v.  Page 
Symons  v.  Hearson 


Section 
141 
141 
453, 454 
179,  199,  200 
418 
336 
627 


T. 

Tabart  v.  Tipper 
Tabram  v.  Horn 
Taft  v  Montague 
Tagart  v.  Hooper 
Taggard  v.  Loring 
Tainter  v.  Hemmenway 
Tait  V.  Harris 
Talbot  V.  Bank  of  Rochester 

V.  Clark 

V.  Gay 
V.  Hodson 
V.  Me  Gee 
V.  Talbot 
Talcott  V.  Commercial  Ins.  Co. 

V.  Marine  Ins.  Co. 
Tallman  v.  Tallman 
Tankersly  v.  Anderson 
Tanner  v.  Bean 

V.  Bennett 

V.  Smart 
Tapley  v.  Lebeaume 
Taplin  v.  Florence 

V.  Packard 
Tappan  v.  Kimball 
Tap})endon  v.  Randall 
Tarbuck  v.  Bij)sham 
Tarleton  v.  M('(ia\vley 
Tarling  v.  Baxter 
Tarver  d.  Rankin 

V.  Tarver 
Tasker  v.  Barllett 
Tsissall  V.  Shane 
Tate  V.  Humphrey 
Tatham  v.  Lowber 
V.  ^Vright 
Tatlock  V.  Harris 
Taunton  v.  Custan 
Tayloe  v.  Sanditbrd  257, 

Taylor  v.  Beal 

V.  Clmrch  254, 

V.  Cole  273, 

V.  Commonwealth 

V.  Coryell 

V.  Cottress 

V.  Crocker 

V.  Drain ji 


424 
189 
104 
682 
378 
556 

86,  624 
164 
207 
186 
296 
141 
684 
401 
394 
74,  78 
141 
160 
385 
440 
264 
627 
118 

441,  444 
111 
127 

231,  254 

638 

291  a 

672 

296,  601 
31 
418 
500 
694 
518 
618 

258,  530 
281 

418,421 

628,  634 

692 

81 

302 

164,  166 
674 


Taylor  v.  Fleet 
V.  Giaser 
V.  Godfrey 
V.  Hawkins 
V.  Higgins 
V.  Hooman 
V.  Horde 
V.  Jones 
V.  Lendey 
V.  Lowell 
V.  McCane 
V.  Needham 
V.  Rainbow 
V.  Robinson 
V.  Sayre 
V.  Shum 
V.  Smith 
V.  Snyder 
V.  Taylor 
V.  Townsend 
V.  Whitehead 
V.  Wilburn 
V.  Willaus 
V.  Williams 
V.  Zamira 
Teal  V.  Felton 
Teat's  case 

Tebbetts  v.  Hamilton  Mut. 
V.  Moore 
V.  Pickering 
Teed  v.  Elworthy 
Teese  v.  Huntingdon 
Teller  v.  Burtis 
Tempany  v.  Burn  and 
Temple  (;.  Pomroy 
V.  Seaver 
Templer  v.  McLachlan 
Templeton  v.  Case 
Ten  Eyck  v.  Waterbury 
Tenney  v.  Prime 
Thames  v.  Richardson 
Thatcher  v.  Dinsmore 
Thayer  v.  Bracket 
V.  Brooks 
V,  Buffum 
V.  Davis 
Theobald  v.  Stinson 
Thetford  v.  Hubbard 
Thomas  v.  Boston  &  Prov, 
V.  De  GralTenried 
V.  Evans 
V.  Foyle 
V.  Graves 
V.  Hawkes 
V.  Ileathorn 
V.  Marsh 
V.  Pearse 


Section 

230  a 

296 

454 

421 

113 

625 

430 

184, 196 

119 

401 

204 

305 

85,  270 

462 

78 

239 

628 

180 

817,  683 

619,  658 

627 

688 

454 

454 

566 

640 

236 

Ins  Co.  406 

65 

118 

478 

496,  500 

430,  557 

404 

64,  65  a 

478 

136,  143 

561 

554 

11  b 

338 

519,  520 

179,  605 

474 

478 

153 

410 

601,  605,  608 

R.  R.       210 

452 

602 

878 

249,  251,  252 

128 

28 

98 

598 


INDEX  TO   CASES   CITED. 


Ixv 


Section 

Section 

Thomas  v.  Snyder 

614 

Ticonic  Bank  v.  Stackpole 

183 

V.  Spofford 

561 

Tidmarsh  v.  Washington  Ins. 

Co.     398, 

V.  Von  Kapff 

240 

401 

V.  Weeks 

492 

Tidswell,  In  re 

78 

V.  Wright 

331 

Tifft  V.  Culver 

253 

Thomas's  case 

109 

Tilden  v.  Metcalf 

271 

Thomason  v.  Odum 

437 

Tilk  V.  Parsons 

420 

Thompson  v.  Bell 

V.  Bernard 

431 

Tilley  V.  Damon 

302 

423 

Tillier  v.  AVhitehead 

481 

V.  Brown           446, 

531,  533 

Tillotson  V.  Cheetham 

253 

».  Button 

560 

V.  Rose 

435 

V.  Hale 

179 

V.  Warner 

454 

r.  HaU 

677 

Tilton  V.  Alcott 

31 

V.  Hopper 

400 

Timmings  v.  Tjmmings 

51,54 

V.  Leach 

369 

Timothy  v.  Simpson 

95 

V.  Lockwood 

302 

Tingley  v.  Cutler 

259 

V.  Manrow 

291a 

Tinkler  v.  Walpole 

484 

V.  Mitchell 

75 

Tippets  V.  Heane 

444 

V,  Mussey 

456,  459 

Tisdale  v.  Essex 

243 

V.  Phelan 

533 

Tobey  v.  Barber 

521 

V.  Rose 

644 

V.  Webster 

616 

V.  Ross 

573 

Tod  V.  Winchelsea 

678 

V.  Symonds 

512 

Todd  V.  Gallagher 

136 

V.  Thompson 

689 

V.  Hawkins 

421 

Thomson  v.  Lay 

367 

V.  Rome 

660 

Thorndell  v.  jNIorrison 

462 

Tolland  v.  Tichenor 

26 

Thorne  v.  Rolff 

278/ 

Tomlinson  v.  Blacksmith 

lie 

V.  Smith 

518 

V.  Collett 

483 

V.  White 

97 

V.  Tomlinson 

684 

Thornton  v.  Illingworth 

367 

Tompkins  v.  Tompkins 

672 

V.  Lance 

402 

Toogood  V.  Spyring 

421 

V.  Royal  Exch.  Co. 

401 

Toosey  v.  Williams 

193 

V.  Stephen 

423 

Topham  v.  Braddick 

435 

V.  Suflblk  Man.  Co. 

251 

Torrence  v.  Gibbens 

571 

V.  United  States  Ins 

.  Co.  393 

Toussaint  v.  Hartop 

79 

V.  Wynn 

190 

V.  Martinnant 

103, 114 

Thornton's  case 

688  a 

Tower  V.  Durell 

190 

Thorogood  v.  Bryan 

232  a 

Towers  v.  Barry 

103 

Thorpe  V.  Booth 

435 

Towne  v.  Jaquith 

74 

V.  Burgess 

604 

V.  Wiley 

368 

V.  Burling 

614 

Townes  v.  Mead 

437 

V.  Combe 

435 

Town's  Adm'r  v.  Hendee 

65 

Thresher  v.  East  London  Waterworks 

Townsend  v.  Crowdy 

124 

656 

V.  Deacon 

437 

Thrupp  V.  Fielder 

367 

V.  Downer 

297,  807 

Thunder  v.  Belcher 

825,  329 

V.  Ives 

694 

Thurman  v.  Wells 

212 

V.  Kerns 

618 

V.  Wild 

30 

V.  PhilUps 

594 

Thurston  v.  Blanchard 

642 

Townsley  v.  Sumrall 

183 

V.  Hancock 

467 

Towson  V.  Havre  De  Grace  Bank     601 

V.  McKown 

199 

Tracy  v.  Herrick 

78 

Thurtell  v.  Beaumont 

408 

V.  Strong 

607 

Tibbatts  v.  Tibbatts 

481 

V.  Swartwout 

253 

Tibbets  v.  Gerrish 

367 

V.  Wikoff 

530 

Tice  V.  Norton 

664 

Treadwell  v.  Bladen 

508 

Ticknor  v.  Harris 

359 

Treanor  v.  Donohoe 

25.5 

Ticonic  Bank  v.  Johnson 

190 

Treasurei-s  v.  McDowell 

141 

Ixvi 


INDEX   TO   CASES   CITED. 


Section 

Treat  v.  Barber  253 

V.  McMahon  1 1  a 

Trelawney  v.  Coleman  56 

Trenton,  &e.  Insurance  Co.  v.  John- 


son 
Trevelyan  v.  Trevelyan 
Trevilian  v.  Pine 
Trevivan  r.  Lawrence 
Triggs  V.  Newnhani 
Trimble  v.  Thorn 

V.  Trimble 
Trimmer  r.  Jacksou 
Trimyer  v.  Pollard 
Tripp  V.  Tliomas 
Trott  ('.  Wood 
Troup  V.  Smith 
Trowbridge  v.  Chapin 
V.  So  udder 
Trower  c.  Chadwick 
Troy  V.  Ch.  Railroad  Co. 
Troy  Turnp.  Co.  v.  McChesney 


409 
681 
56  7 
281 
178 
19G 
4G2 
675 
440 
456 
251 
448 
212 
481 
4()2 
4  74 
G3 


True  V.  Coilins  188,  525 

V.  Ranny  461,  464 

Trueman  v.  Fenton  115 

V.  Hurst  128,  446 

Truitt  i?.  Revill  597 

Trull  V.  Eastman  240 

Truman's  case  461 

Trumbull  v.  Gibbons  688  a,  689 

Truseott  i'.  King  533 

Tryon  v.  Carter  290 

Tubbs  V.  Richardson  646 

V.  Tukey  615 

Tuberville  v.  Savage  82,  83 

V.  Whitehouse  365 

Tucker  v.  Barrow  126 

V.  Cracklin  209,  213 

V.  Haughton  440 

V.  Ives  445 

V.  INIoreland  369 

V.  Smith  200 

V.  Wilamonicz  207 

Tuckerman  v.  Sleeper  518 

Tufts  V.  Adams  242,  244 

V.  Cliarlestown  657 

Turrwell  i:  I  ley  man  108 

Tullay  V.  Reed  98 

TuUi.lge  c.  Wade  89,  253,  579 

Tullock  V.  Dunn  352 

Tupper  r.  Cadwell  365 

Turner  v.  Ambler  454,  455 

V.  Child  313 

V.  Eyles  239 

V.  Hitchcock  228 

V.  Meyraott  618 

V.  ]Myers  464 

V.  Protect.  Ins.  Co.  403 


Turner  v.  Turner 

V.  Wilson 

V.  Winter 
V.  Yates 
Turney  v.  Paw 

V.  Turney 
V.  Wilson 
Turnipseed  v.  Hawkins 
TurrlU  v.  Dolloway 
Turton  v.  Turton 
Turvll  V.  Tipper 
Tuson  V.  Evans 
Tuthlll  V.  Davis 
Tuttle  tf.  Brown 

I'.  Cooper 

V.  Mayo 
Tweed  v.  Libbey 
Twemlow  v.  Oswin 
Twombly  v.  Henley 

V.  Hunnewell 
Twitchell  V.  Shaw 
Tybout  V.  Thompson 
Tye  V.  Gwinne 
Tyler  v.  Binney 

V.  Duke  of  Leeds 

V.  Freeman 

V.  Smith 

V.  Wilkinson 

V.  Young 
TjTidal  V.  Hutchinson 
Tyson  v.  Shueey 


U. 


Section 
45,  449,  453 
219,  377 
490 
251 
279 
46 
209 
694 
425 
43,  53,  54 
593 
411 
207 
262 
484 
104 
18,  20 
386 
241 
688 
597,  629 
123 
136 
166 
593 
561 
619 
539 
175 
280 
618 


Uhde  V.  Walters  377 

Ulmer  v.  Leland  454,  457 

Ulster  Co.  Bank  v.  McFarlan  161 

Umphelby  v.  McLean  434 

Underhlll  v.  Agawam,  &c.  Ins.  Co.    406 

Underwood  v.  Carney  659  a 

V.  Hewson  85,  270 

V.  Nichols  618 

V.  Parkes  274,  425 

Union  Bank  v.  Knapp  445 

V.  RIdgely  2'>7,  300 

V.  Stone  182 

Union  Bank  of  Georgetown  v. 

Geary  I'll 

Union  Bank  of  Georgetown  v. 

Macgruder  190 

Union  Bank  of  Weymouth  v. 

Willis  126,176 

Union  Bank  of  Weymouth  &  B. 

D.Willis  163 

United  States  v.  Appleton  659  a 

V.  Bradbury  529 


INDEX   TO   CASES   CITED. 


Ixv! 


Section 

United  States  v.  Coffin 

296 

V.  Drew 

374 

V.  Hoar 

348, 350 

V.  Kirkpatrick 

533 

V,  Lyman 

118 

V.  M'Daniel 

251 

V.  M'Glue 

373 

V.  Ortega 

84 

V.  Shultz 

373 

V.  Wardwell 

533 

V.  Worrall 

286 

Bank  v.  Binney 

481 

V.  WardweU      529 

Unwin  V.  Heath 

50G 

Updike  V.  Henry 

561 

Upham  V.  Lefavour             531, 

532,  533 

Upston  V.  Slark 

211 

Upton  V.  Curtis 

570 

V.  Suffolk  Co.  Mills 

64  a 

Urban  v.  Grimes 

367 

Usticke  V.  Bawden 

682,  683 

Uther  V.  Rich 

172,639 

Utterson  v.  Vernon 

337 

Utterton  v.  Utterton 

681 

V. 

Vail  V.  Rice  252 

Vallejo  V.  Wheeler  390 

Valpey  w.  Manley  121 

Van  Alen  v.  Rogers  333,  337 

Van  Buskirk  v.  Claw  464 

Vance  v.  Campbell  499 

V.  Foster  407 

V,  Vance  45 

Van  Cortlandt  v.  Underhill  73 

Vander  Donckt  v.  Thellusson  180 

Vandurplank  v.  Miller  473 

Vandewall  v.  Tyrrell  114 

Van  Dorens  v.  Everett  367 

Van  Epps  v.  Harrison  136 

V.  Van  Epps  41 

Van  Horn  v.  Freeman  226,  576 

Van  Home  v.  Crain  240 

Van  Husan  v.  Kanouse  600 

Van  Ostrand  v.  Reed  113 

V^an  Rensselaer  v.  Platner  260 

V.  Roberts  531 

V.  Secor  297 

Vansandau  v.  Browne  142 

Van  Santvoord  v.  St.  John  210 

Van  Schaack  v.  Stafford  204 

Vansteenburg  v.  Hoffman  520 

Vansyckle  v.  Richardson  358 

Van  Valkingburg  v.  Rouk  300 

V.  Watson  108 


Section 

Van  Vechten  v.  Hopkins 

417 

Van  Wyck  v.  Aspinwall 

421 

Varney  v.  Grows 

437 

Varnum  v.  Bellamy 

141 

Varrill  v.  Heald 

270 

Vass  V.  Conrad 

442 

Vasse  V.  Smith 

368 

Vassor  v.  Camp 

481 

Vaughan  v.  Blanchard 

280 

V.  Thompson 

279 

Veazy  v.  Harmony 

608 

Vedder  ?'.  Vedder 

28  a 

Veghte  V.  Hoagland 

74 

Venefra  v.  Johnson 

454 

Venning  v.  Shuttleworth 

204 

Ventris  v.  Shaw 

440 

Vere  v.  Cawdor 

630 

V.  Lewis 

164,  169 

Verner  v.  Swrltzer 

216 

Vernon  v.  Curtis 

844,  345 

V.  Kays 

271 

V.  Smith 

240 

Verplank  v.  Sterry 

297 

VerraU  v.  Robinson 

645 

Verry  v.  Watklns 

577 

Vcssey  v.  Pike 

425 

Viall  V.  Smith 

151 

Vibbard  v.  Johnson 

136 

Vickars  v.  Wilcocks 

256 

Victors  V.  Davis 

107 

Villepigue  v.  Shular 

573 

Vincent  v.  Cornell 

544 

V.  Groome 

142 

Vines  v.  Terrell 

420 

VIsger  V.  Prescott 

388 

Vivyan  v.  Arthur 

240 

Von  Hemert  v.  Porter 

437 

Vooglit  V.  Winch 

666 

Vose  V.  Eagle  Life,  &c.  Ins. 

Co.         409 

V.  Handy 

330 

Voss  V.  Robinson 

394 

Vowles  V.  Miller 

617 

Voj'ce  V.  Voyce 

626 

Vynior's  case 

79 

w. 

Waddell  v.  Cook  647 

Wade  V.  Haycock  261 

V.  Howard  330 

V.  Leroy  267 

V.  MerwIn  236 

V.  Walden  455,  458 

V.  Wilson  112 

Wade's  case  602,  604 

Wadhurst  v.  Damme  630 


Ixviii 


INDEX   TO   CASES    CITED. 


Bection 

Wadsworth  v.  AUcott 

251 

I'.  Manninw 

481 

V.  Marshall 

142 

V.  Ruggles 

690 

Wafer  v.  Mocato 

259 

Wailing  v.  Toll 

134, 3G6 

Wainman  v.  Kynman 

444 

Wait  V.  INIaxwcll 

241,  555 

17.  Richarclson 

618 

Walte  I".  Barry 

78 

V.  Gilbert 

261 

Waitlnnan  i\  Weaver 

424 

Wakefield  v.  Llnnellv  Railway 

& 

Doek'Co. 

78 

V.  Nevvbon 

121 

Wakeman  v.  Robinson           8' 

,  94,  270 

Wakley  v.  Jolinson 

275 

Walan'd  v.  El  kins 

214 

Walbridge  v.  Shaw 

560 

Walcot  ('.  Pomeroy 

614 

Walden  v.  Davison 

580 

V.  New  York  Ins.  Co. 

397 

Waldron  v.  Chase 

107 

V.  Cooinbe 

385 

V.  McCarty 

243 

Wales  V.  Jones 

2G 

AValford  v.  Anthony 

625 

Walker  r.  Davis 

368,  648 

V.  Goorlrieh 

140,435 

V.  Ham 

111,112 

V.  Holiday 

36 

V.  Hunter 

672,  688 

V.  Maitland 

387 

V.  IMelcher 

74 

V.  Seott 

141 

V.  Seaborne 

30,  480 

V.  Smith 

253 

V.  Walker 

190 

V.  Wright 

528 

"Wall  V.  East  River  Ins.  Co. 

251 

V.  Hinds 

656 

Wallace  v.  Hardacre 

88 

V.  Kelsall 

30,  480 

V.  King 

648 

y.  MeConnell              174,180  a 

Wallcy  V.  Walley 

448 

Wallis  V.  Alpine 

455 

V.  Mease 

418 

Walsh  V.  Bishop 

277 

Walter  v.  Green 

55 

V.  Ilaynes 

525 

V.  Sample 

458 

V.  Selfe 

467,473 

Walters  v.  Brown 

18« 

V.  Mace 

414 

V.  Pleil 

473 

Waltman  v.  Allison 

566 

Section 

Walton  V.  Eldridge  528 

V.  Kersop  562 

V.  Mascall  186  a 

V.  Potter  501  a 

V.  Robinson  441 

V.  Walton  686,  687 

AValwyn  v.  St.  Quinton  165,  202 

Wankford  v.  Wankford  839 

Wanstall  v.  Pooley  232  a 

Warburton  v.  Storer  79 

Ward  V.  Diilaney  461 

V.  Evans  66 

V.  Fuller  554,  555 

V.  Harrison  317 

*..  Lee  139 

V.  Lewis  297 

V.  Macauley  616 

V.  Pearson  11  d 

V.  Smith  421 

V.  Weeks  414 

Warden,  In  re  676 

Warder  v.  Tucker  190 

Ware  v.  Gay  221,  222 

V.  Ware  690 

V.  Weathnall  264 

Warfield  v.  Walter  635  a 

Waring  v.  Waring  371  a 

Warmoll  v.  Young  593 

Warne  v.  Chadwell  418 

AVarner  v.  Beach  684 

V.  Tlmrlo  263 

V.  Wheeler  124 

Warr  v.  Jolly  421 

Warrall  v.  Clare  633,  634 

Warren  v.  Austen  253 

V.  Baxter  691 

V.  Child  557 

V.  Cochran  614 

V.  Leland  561 

V.  Lynch  296 

V.  Mains  60] 

V.  i\Ierry  207 

V.  Postlethwaite  675 

V.  Wade  299 

V.Warren  183,416 

Warren  Bank  v.  Suffolk  Bank  251 

V.  Parker  178 

Warwick  v.  Foulkes  272 

Warwieke  v.  Nookes  525 

Washer  V.  White  190 

Washington  Bank  c.  Brown  556 

Waterbury  v.  >Vestervelt  580 

AVaterman  v.  Barratt  302 

I'.  Burbank  440 

i\  Robinson  5G1 

Waters  v.  Lilley  625 

V.  Merchants'  Ins.  Co.  40.'i 


INDEX    TO   CASES   CITED. 


Ixix 


Section 


vVaters  v.  Monarch,  &c.  Ins. 

Co.        405 

V.  Paynter 

163 

V.  Thanet 

440 

0.  Tomkins 

536 

V.  Towers 

261 

Watertown  v.  Cowen 

240 

Watkius  V.  Baird 

121,  302 

V.  Hill 

519,520 

V.  Lee 

452 

V.  ]\Iorgan 

11  e 

V.  Vince 

65 

V.  Woolney 

644 

Watklnson  v.  Inglesby 

28 

Watson  V.  Bayless 

579 

V.  Brainard 

.   135 

V.  Christie 

93,  97,  274 

V.  Chxrk 

400,  401 

V.  King 

338,  384 

V.  Moore 

424 

V.  North  Amer.  Ins 

Co.        401 

V.  Pears 

488 

V.  Poulson 

230  a 

V.  Reynolds 

428 

V.  Russell 

117 

V.  The  Ambergate, 

&c. 

Railway  Co. 

210,  256 

V.  Todd 

580 

V.  Turner 

107,  114 

V.  Wliitmore 
Watt  V.  Greenlee 

V.  Hoch 
Watts  V.  Baker 
V.  Frazier 
V.  Public  Adm'r 
V.  Welman 
V.  Willing 
Waugh  V.  Bussell 
Way  V.  Bassett 

V.  Richardson 
V.  Sperry 
Waynian  v.  Bend 
Wayne  v.  Sands 
Weatherford  v.  Weatherford 
Weaver  v.  Bachert 
V.  Bush 
V.  Lloyd 
V.  Ward 
Webb  V.  Alexander 
V.  Fox 
V.  Heme 
V.  Hill 

V.  Paternoster 
V.  Powers 
V.  Thompson 
V.  Turner 
Webb's  case 
Webber  v.  Liversuch 


85, 


454 
457 
532 
607 
275 
674 
242 
523 

13 
179 
163 
441 
163 
302 
463 
256 

98 
423 
270 
243 
637 
584 

13 
475 
514 
384 
624 
210 

96 


Section 

Webber  v.  Nicholas  456 

V.  Richards  625 

V.  TiviU  447 

V.  Webber  354 

Webster  v.  Drinkwater  108 

U.Lee  74,199 

Weed  V.  Saratoga  &  S.  R.  R.    210,  221 

Weeden  v.  Tunbrell  51 

Weeks  v.Gibbs  345,347 

Weems  v.  Farmers'  Bank  177 

Weidner  v.  Schweigart  527 

Weigall  V.  Waters  245  a 

Weigel  V.  Weigell  676 

Weinberger  v.  Shelly  452 

Weir  V.  Aberdeen  400 

Welch  r.  Seaborn  112 

Welcome  v.  Upton  544 

Weld  V.  Bartlett  599 

V.  Chadbourne  585 

V.  Oliver  646 

Weleker  v.  Le  Pelletier  21,  26 

Welford  v.  Diddel  447 

Wellcome  v.  People's,  &c.  Ins.  Co. 

406 

Weller  v.  Baker  227 

Wellington  v.  Wentworth  644 

Wells  V.  Brigham  118 

V.  Cooke  73 

V.  Fish  448 

V.  Head  272 

V.  Hop  wood  391 

V.  Ody  226,  472 

V.  Prince  554 

V.  Some  36 

V.  William  19 

Welsted  v.  Levy  200 

Wendover  r.  Hodgeboom  378 

Wennall  y.  Adney  114 

Wentworth  v.  Blanchard  614 

V.  Bullen  449 

V.  Wentworth  30 

Werely  v.  Persons  89 

Wesson  v.  Newton  71 

West  V.  Chamberlain  524 

V.  Hughes  333 

V.  Rice  435 

Westfall  V.  Hudson  River,  &c.  Ins. 

Co.  408 

Westmeth  v.  Westmeth  54 

Weston  V.  Alden  467 

V.  Ames  435 

V.  Barker  109 

V.  Carter  562 

V.  Downes  103 

V.  Foster  29 

V.  Reading  657 

Wetherbee  v.  Marsh  424 


Ixx 


INDEX   TO   CASES   CITED. 


Section 

Section 

Wetherstone  v.  Hawkins 

419 

"White  V.  Sayward 

417 

Wetzel  I 

}.  Bussard 

440 

443 

V.  Whitman 

26 

Whaley 

V.  Pepper 

451 

454 

V.  Whitney 

244 

"Wharton  v.  Mackenzie 

3G5 

V.  Wilson 

689, 690 

Wheat  field  v.  Brush  Valley 

123 

V.  Winnissimmet  Ferry 

Co. 

Wheaton  v.  East 

241 

220,473 

V.  llibbard 

121 

Whitehall  v.  Squire 

649 

V.  Pctci-s 

510 

511 

Whitehead  v.  Howard 

126,443 

V.  Wilmarth 

189 

V.  Lord 

142 

Wheeler 

V.  Alderson 

675 

V.  Taylor 

507 

V.  East  London  Water- 

V. Tucket 

G5 

works 

656 

V.  Varnum 

599 

V.  Field 

180 

195 

Whitehouse  v.  Atkinson 

G49 

V.  Hatch 

241 

Whiteman  v.  Slack 

236 

V.  Home 

37 

AVhitesell  v.  Crane 

216 

V.  House 

631 

Whiteside  r.  Jackson 

305 

V.  Nesbit 

453 

V.  Russell 

219 

V.  Nevins 

Gl 

AVhiteside's  Appeal 

278/ 

V.  Rice 

4  78 

Whitfield  I'.  Savage 

195 

V.  Row  ell 

618  a 

Whitliead  v.  Keyes 

585,  591 

V.  Train 

561 

G40 

Whiting  V.  Smith 

414 

V.  Wheeler 

646 

V.  Sullivan 

108 

Wheelock  v.  Doolittle 

441 

Whitney  v.  Bigelow 

441, 444 

V.  Pierce 

347 

V,  Clarendon 

268  b 

V.  Wheelwrieht 

642 

V.  Dutch 

367 

Wheelwright  v.  Depeyster 

649 

V.  Ferris 

484 

V.  Freeman 

556 

V.  Hitchcock 

253 

V.  ^ylleelwright 

297 

V.  Lewis 

136 

Whelen 

V.  Watmaujih 

37,  38 

V.  Peckham 

457 

Whelpdale's  case 

300 

V.  Smith 

414 

Wliipple 

V.  Kent 

597 

V.  Sterling 

483 

V.  Walpole 

253 

Whittemorev.  Black 

649 

Whispcll 

V.  Whispell 

53 

V.  Cutter 

253,  254 

Whitaker  i>.  Edmonds 

172 

V.  Wilks 

473 

V.  Sumner 

31G 

Whittier  v.  Graflfhara 

195 

Whitbeck  v.  Cook 

11  a 

Whitwell  V.  Bennett 

118 

V.  Taylor 

667 

V.  Johnson 

187,  194 

V.  Van  Ness 

623 

V.  Kennedy 

2G5 

Whiter. 

Atkins 

136  a 

V.  Varnum 

599 

V. 

Bass 

115 

V.  Wells 

561 

V. 

Bailey 

437 

439 

Whitwill  V.  Scheer 

11  d 

V. 

British  Museum 

6  75 

Whorewood  v.  Shaw 

109 

V. 

Crawford 

659  a 

665 

AV^ickham  v.  Freeman 

614 

V. 

Demary 

644 

AVicks  V.  Fentliam 

452 

V. 

Din;;U.y 

259 

Widdifield  V.  Widdifield 

483 

V. 

Edf^man 

64 

Widger  v.  Bi-owning 

324 

V. 

Franklin  Bank 

111 

121 

AVigan  v.  Rowland 

677,  691 

V. 

Golle 

146 

Wiggin  V.  Amory 

390 

V. 

Hafjue 

232  a 

Wigglesworth  v.  Dallison 

251 

V. 

KibliiifT 

207 

V.  Steers 

300 

V. 

Livinj^ston 

614 

Wightman  v.  Wightman 

464 

V. 

Mann 

278/ 

343 

AV'iginore  r.  Jay 

232  i 

V. 

Morton 

646 

Wihen  v.  Law 

363 

V. 

Mosely 

272 

AVik(irt''s  Appeal 

674 

V. 

Oliver 

104 

Williaumc  v.  (iorges 

291 

V. 

Osbom 

64  7 

AVilhour  v.  Turner 

168,  199 

V. 

Pickering 

817 

AV^ilbrahara  v.  Snow 

614,  637 

INDEX   TO    CASES   CITED. 


Ixxi 


Section 

Section 

Wilbur  V.  Bowditch,  &c.  Ins. 

Co. 

406 

WiUiams  V.  Sills 

234 

V.  Sproat 

117, 

121 

V.  Taylor 

454 

Wilby  V.  Henman 

431 

17.  Weatherbee 

244 

Wilcox  V.  Rowland 

302 

i;.  Welch 

562 

V.  Hunt 

672 

V.  Williams           41, 

44,  45,  49 

V.  IMcNutt 

118 

V.  Woodward 

239,  241 

V.  Pluinmer 

146, 

268 

Willis  V.  Barratt 

160 

Wild  V.  Pickford 

218 

V.  Bernard 

55 

Wilde  V.  Clarkson 

263 

I'.  D\'son 

485 

V.  Fisher 

112 

V.  Newham 

440,  44'1 

V.  Waters 

644 

V.  AVatson 

686 

Wilder  v.  Bailey 

587 

Williston  V.  Smith 

424 

V.  llolih'U 

697 

^^' 

lloughby  V.  Horridge 

221) 

Wilderman  v.  Sandusky 

624 

w 

lis,  In  re 

147 

Wilkins  V.  Aiken 

514 

AV 

Imett  V.  Harmer 

426 

V.  Gihnore 

272 

w 

ihnot  V.  Smith 

606 

V.  Jadis 

178 

w 

Isford  V.  Wood 

478 

Wilkinson  v.  Byers 

28 

Wilson  V.  Appleton 

437 

V.  Hay  garth 

615 

V.  Beddard 

674 

V.  Howell 

452 

V.  Coffin 

144 

V.  Jadis 

196 

V.  Concord  Railroad  Co.           78 

t;.  Johnson 

122 

V.  Coupland 

112 

V.  King 

638 

640 

V.  Edmonds 

68  a 

V.  Lutwidge 

164 

V.  Forbes 

241,  264 

Willard  v.  Kimball 

560 

V.  Force 

523 

V.  Twitchell 

241 

V.  Freeman 

218 

Willbeam  v.  Asliton 

258 

V.  Fuller 

230  a 

Williams  v.  Annapolis 

305 

V.  Hodges 

110 

V.  Babbitt 

597 

V.  Hurst 

533 

V.  Bosanquet 

239 

V.  Jennings 

114 

V.  B ransom 

219 

V.  Kennedy 

620 

V.  Bridges 

584 

V.  King 

11  a 

V.  Burrell 

240 

V.  IMacreth 

615 

V.  Cheney 

162 

V.  Martin 

216 

V.  Cranston 

222 

V.  Mitchell 

301 

V.  Crary 

524 

t;.  Norman 

587 

V.  Cummington 

662 

V.  Ray 

121 

V.  Currie 

253 

V.  Reed 

646,  647 

V.  Everett 

119 

V.  Robinson 

421 

V.  Grant 

219 

377 

V.  Shearer 

641 

V.  Gridley 

440 

V.  Stolly 

491 

V.  Griffith 

535 

V.  Tucker 

149 

V.  Holland 

220 

,  226 

V.  Tummon 

66,  68 

V.  Houghtaling 

529 

V.  Vysar 

520 

V.  Ingell 

303 

V.  Wadleigh 

141 

V.  Lines 

34  7 

V.  AVallace 

11  a 

V.  Jones 

98 

V.  Wilson 

358 

V.  Lee 

11  a 

V.  Woolfryea 

246 

V.  Matthews 

197 

Wilt  V.  Otfden 

135 

V.  Mitchell 

68 

V.  Vickers 

268  a 

V.  Moor 

367 

Wiltoy  V.  Montfort 

240 

V.  Morris 

627 

Wilton  V.  Girdlestone 

644 

V.  Mostyn 

584 

,  599 

V.  Webster 

51,  55,  57 

V.  Paschal 

78 

Wiltshire  v.  Sidford 

617 

V.  Putnam 

183 

W 

inans  v.  Denmead 

489 

V.  Reed 

145 

V.  New  York  &  Erie 

R.  R.  498 

V.  Roberts 

431 

Winchell  v.  Bowman 

441,  444 

axil 


INDEX   TO   CASES   CITED. 


Section 
678 
188 
409 

107,  114 
648 
481 
561 
11  a 
55 

674,  681 
475 


Winchelsea  v.  Wauchope 
Windham  Bank  v.  Norton 
Wing  V.  Harvey 

V.  Mill 
Wingfifld  V.  Stratford 
Winsliip  c.  United  States  Bank 
Winslow  V.  Leonard 

V.  Merrill 
Winsmore  v.  Greenbank 
Winsor  v.  Pratt 
Winter  v.  Brookwell 

V.  Charter  472 

V.  Del.  Mut.  Saf.  Ins.  Co.     403 

V.  Henn  51 

V.  Trimmer  257 

V.  W'^root  56 

Winterbottoni  i'.  IMorehouse  644 

V.  Wright      232  «,  232  /; 

Winthrop  v.  Union  Ins.  Co.  251,  252 

Wintringham  v.  Lafby  621 

Wiseman  v.  Chiaj)pella  180 

V.  Lyman  623 

Wissler  v.  Hersliey  658 

Witchcott  V.  Nine  243 

AVitham  v.  Gowen  457 

AV'ittersheim  v.  Countess  of  Carlisle  435 

Wittv  V.  Ilightower  244 

AVoe'rt  v.  Jenkins  253,  272 

Wolcott  V.  Hall  275 

('.  Knight  556 

Wolfe  V.  Dowell  307 

Wolraer  v.  Latimer  424 

Wolstenholm  r.  Davies  65 

Wood  V.  Auburn  &  Koch.  R.  R.  Co.  61 


V.  Buckley 

449 

V.  Day 

305 

V.  Edwards 

103 

V.  Hickok 

252 

r.  Ilitclieock 

605 

I'.  Hopkins 

•     141 

V.  Luke 

26 

V.  Manlcy 

627 

r.  Pope 

245  a 

V.  United  States 

454 

V.  Veal 

545,  663 

Wooilbridge  v.  Brigham 

179 

Woodbury  v.  Frink 

213 

t».  Nortiiy 

78 

Savings  Bank  v. 

Charter 

Oak  Ins.  Co. 

405 

Woodcock  I'.  Hnuldsworth 

187,  193 

V.  Parker 

4  92 

Woodhull  V.  Holmes 

2fi6 

Woodman  v.  Coolbroth 

297 

V.  (list 

580,  591 

V.  Hubbard 

642 

V.  Mytton 

160 

Section 

Woodman  v.  Smith  556 

Woods  t'.  Houghton  431,  432 

V.  Ridley  160 

V.  Russell  638 

Woodrow  V.  O'Connor  78 

Woodward  v.  Booth  209 

V.  Giles  259 

V.  Hopkins  597 

V.  Larkin  378 

V.  Newhall  24,  133 

V.  Thaeher  262 

V.  Walton  88,  225,  27 J 

V.  Ware  431 

Woodworth  v.  Sherman  492 

Woodyer  v.  Hadden  660 

Wookey  v.  Pole  639 

Wooldridge  v.  Boy  dell  382 

Woolley  V.  Carter  635  a 

V.  Clark  339,  641 

Worcester  v.  Eaton  111,  121 

Worcester  Bank  v.  Hartford,  &c.  Ins. 

Co.  406 
Worcester  County  Bank  v.  D.  &  M. 

Bank  172 

Wordsworth  v.  Harley  434 

Worraouth  v.  Cramer  11  (^ 

AVorsley  v.  Wood  406 

Worthington  v.  Barlow  347 

Wren  v.  Heslop  454 

Wright  V.  Barnard  401 

V.  Boston  121 

V.  Butler  135 

V.  Cahlwell  212 

V.  Castle  139 

V.  Hicks  150 

V.  Laing  533 

V  Lainson  593 

V.  Ld.  A^erney  115 

V.  ]\Iorris  104 

V.  Netherwood  684 

V.  Ramscott  630 

V.  Rattray  659 

r.  Reed  601 

17.  Russell  478 

V.  Tukey  662 

V.  Woodgate  421 

V.  Wright  G75 

Wurt  V.  Lee  518 

Wyatt  V.  (iore  424 

V.  Harrison  467 

Wver  V.  Dorchester  &  M.  Bank         1  72 

Wyeth  V.  Sf(me  489.  491,  507 

Wyman  v.  American  Powder  Co.      261 

V.  Ballard  242 

V.  (Jould  371 

V.  Hal.  &  Augusta  Bank         68 

V.  Hook  Ui8 


INDEX   TO   CASES   CITED. 


Lxxiii 


Section 

Section 

Wyman  v.  State 

662 

Young  V.  Drew 

317 

Wynch  v.  E.  India  Co. 

435 

V.  Gregory 

450 

Wyndham  v.  Wycombe 

52 

V.  Grote 

122 

Wynn  v.  Allard 

253 

V.  Hichens 

620 

V.  Hevingham 

681 

V.  Hosmer 

586,  599 

Wynne  v.  Anderson 

624 

V.  Hunter 
V.  Kenyon 
V.  Marshall 

483 
431 

120 

T 

V.  Mason 
V.  Miller 

642 
73 

Yale  V.  Saunders 

649 

V.  Patterson 

164 

Yarnold  v.  Wallis 

686 

V.  Preston 

lO.'^ 

Yate  V.  Willan 

209 

V.  Tustin 

268  a 

Yates  V.  Freckleton 

518 

V.  Weston 

435 

V.  Thompson 

272 

Younges  v.  Lee 

189 

Yea  V.  Fouraker 

441 

Yrisarri  v.  Clement 

412,417 

V.  Lethridge 

586 

Ycatman  v.  Erwin 

187 

Yeomans  v.  Bradshaw 

338 

Z. 

Yerby  v.  Yerby 

684 

York  V.  Blott 

161 

204 

Zachary  v.  Pace 

464,  64j 

V.  Pease 

418 

421 

Zeig  u.  Ort 

414 

Co.  V.  Central  Railroad 

215 

Zeigler  v.  Gray 

207 

Youl  V.  Harbottle 

642 

V.  Zeigler 

78 

Youndt  V.  Youndt 

688  a 

Zeniobio  v.  A^xtell 

i:  (/,  414 

Young  V.  Adami3                  112 

124 

,522 

Zent  V.  Hart 

444 

V.  Black 

135 

Zerrano  v.  Wilson 

520 

V.  Bryan 

183 

Zimmerman  v.  Zimmerman 

688,  088  a 

V.  Covell 

271 

Zouch  V.  Willingale 

321,327 

A   TREATISE 


LAW    OF    EVIDENCE. 


PART  IV. 


OP    THE    EYIDENCE    REQUISITE 


IN    CERTAIN 


PAETICULAR    ACTIONS    AND    ISSUES 


COMMON    LAW. 


VOL.  n. 


A 

TREATISE 


OH 


THE    LAW   OF    EYIDENCE 


PART  IV. 

OF   THE   EVIDENCE   REQUISITE   IN    CERTAIN   PARTICULAB 
ACTIONS    AND   ISSUES   AT    COMMON   LAW. 


PRELIMINARY    OBSERVATIONS. 

[*  §  1.  Subjects  treated  of  in  first  volume. 

2.  Some  general  doctrines  discussed  in  first  rolume. 

3.  Issues,  formerly  framed  in  open  court. 

4.  Issues  by  the  common  law,  framed  by  attorneys  for  the  parties. 

5.  OflBces  oi  general  and  special  issues. 

6.  General  issue  in  assumpsit  and  trespass  on  the  case,  permits  defendant  to  prOT« 

any  matter  tending  to  show  that  plaintiff  has  no  right  of  action. 

7.  General  mode  of  pleading  restricted  by  statute  in  England. 

8.  Effect  of  general  issue  by  the  English  rules. 

9.  In  United  States  tendency  has  been  to  greater  latitude  in  pleading. 

10.  General  rules  laid  down  in  this  work. 

11.  Variance  sometimes  obviated  by  amendment. 
11a.  Amendments  of  process  as  to  names  of  parties. 
116.  Amendments  of  pleadings,  how  far  allowed, 
lie.  Provisions  of  English  statutes  of  amendments. 
lid.  Construction  of  English  statutes.     Illustrations, 
lie.  Instances  where  amendments  have  been  refused. 

12.  Descriptions  in  declaration  must  be  accurate. 

13.  Immaterial  discrepancy  between  record  and  deed  not  regarded. 

14.  Ordinarily  in  pleading,  an  instrument  should  be  set  forth  according  to  its  effect 

in  law. 

15.  Not  always  sufficient  to  set  forth  instrument  in  its  literal  terms. 

16.  Right  of  adverse  party  to  require  ■pxooi  oi  formal  execution  of  written  documents 

restricted. 

17.  Loss  of  instrument  may  be  proved  by  affidavit  of  plaintiff.] 


A 

TREATISE 


OH 


THE    LAW   OF    EVIDENCE 


PART  IV. 

OP   THE    EVIDENCE   REQUISITE   IN    CERTAIN   PARTICULAH 
ACTIONS    AND   ISSUES    AT    COMMON    LAW. 


PRELIMINARY  OBSERVATIONS. 

[•  §  1.  Subjects  treated  of  in  first  volume. 

2.  Some  general  doctrines  discussed  in  first  volume. 

3.  Issues,  formerly  framed  in  open  court. 

4.  Issues  by  the  common  law,  framed  by  attorneys  for  the  parties. 

5.  Ofiices  of  general  and  special  issues. 

6.  General  issue  in  assumpsit  and  trespass  on  the  case,  permits  defendant  to  prOTt 

any  matter  tending  to  show  that  plaintiflf  has  no  right  of  action. 

7.  General  mode  of  pleading  restricted  by  statute  in  England. 

8.  Effect  of  general  issue  by  the  English  rules. 

9.  In  United  States  tendency  has  been  to  greater  latitude  in  pleading. 

10.  General  rules  laid  down  in  this  work. 

11.  Variance  sometimes  obviated  by  amendment. 
11a.  Amendments  of  process  as  to  names  of  parties. 
11  6.  Amendments  of  pleadings,  how  far  allowed, 
lie.  Provisions  of  English  statutes  of  amendments. 

1 1  d.  Construction  of  English  statutes.     Illustrations. 
lie.  Instances  where  amendments  have  been  refused. 

12.  Descriptions  in  declaration  must  be  accurate. 

13.  Immaterial  discrepancy  between  record  and  deed  not  regarded. 

14.  Ordinarily  in  pleading,  an  instrument  shonld  be  set  forth  according  to  its  effect 

in  lata. 

15.  Not  always  sufficient  to  set  forth  instrument  in  its  literal  terms. 

16.  Right  of  adverse  party  to  require  ^root  of  formal  execution  of  written  documents 

restricted. 

17.  Loss  of  instrument  may  be  proved  by  affidavit  of  plaintiff.] 


4  LA'^    OP  EVIDENCE.  [PART  IV. 

§  1.  Having,  in  the  preceding  volume,  treated,  First,  Of  the 
Nature  and  Principles  of  Evidence,  —  Secondly,  Of  the  Olvject  of 
Evidence,  and  the  Rules  which  govern  in  the  Production  of  Testi- 
mony, —  and,  Tfm-dly,  Of  the  Means  of  Proof,  or  the  Instruments 
by  which  Facts  are  established  ;  it  is  now  proposed  to  consider, 
Fourtlily,  The  Evidence  Requisite  in  certain  Particular  Actions 
and  Issues,  at  Common  Law,  with  reference  both  to  the  nature  of 
the  suit  or  of  the  issue,  and  to  the  legal  or  official  character  and 
relations  of  the  parties. 

§  2.  "We  have  already  seen,  that  the  evidence  must  correspond 
with  the  allegations,  and  be  confined  to  the  point  in  issue  ;  ^  that 
the  substance  of  the  issue,  and  that  only,  must  be  proved  ;  ^  -that 
the  burden  of  proof  generally  lies  on  the  party  holding  the  afiirma- 
tive  of  the  issue  ^;  ^  and  that  the  best  evidence,  of  which  the  nature 
of  tlie  case  is  susceptible,  must  be  adduced.*  These  doctrines, 
therefore,  will  not  be  again  discussed  in  this  place. 

§  3.  The  first  thing  which  will  receive  attention,  in  the  prepara- 
tion of  a  cause  for  trial,  will  naturally  be  the  issue,  or  proposition 
to  be  maintained  or  controverted.  In  the  early  age  of  the  com- 
mon law,  the  pleadings  were  altercations  in  open  court,  in  presence 
of  the  judges  ;  whose  province  it  was  to  superintend  or  moderate 
the  oral  contention  thus  conducted  before  them.  In  doing  this, 
their  general  aim  was,  to  compel  the  pleaders  so  to  manage  their 
alternate  allegations,  as  at  length  to  arrive  at  some  specific  point 
or  matter,  affirmed  on  one  side,  and  denied  on  the  other.  If  this 
point  was  matter  of  fact,  the  parties  then,  by  mutual  agreement, 
referred  it  to  one  of  the  various  methods  of  trial  then  in  use,  or  to 
such  trial  as  the  court  should  think  proper.  They  were  then  said 
to  be  at  issue  (ad  exitum,  that  is,  at  the  end  of  their  pleading)  ; 
and  the  question  thus  raised  for  decision,  was  called  the  issue.^ 
In  this  course  of  proceeding,  every  allegation  passed  over  without 
denial,  was  considered  as  admitted  by  the  opposite  party,  and  thus 
the  controversy  finally  turned  upon  the  proposition,  and  that  alone, 
which  was  involved  in  the  issue.  This  method  was  found  so  highly 
beneficial,  that  it  was  retained  after  the  pleadings  were  conducted 
in  writing,  and  it  still  constitutes  one  of  the  cardinal  doctrines  of 
the  law  of  pleading. 

1  VoL  I,  Pt.  2,  ch.  1.  «  Vol.  1,  Pt.  2,  ch.  4. 

2  Vol.  1,  Pt.  2,  ch.  2.  6  Stephen  on  Pleading,  pp.  29,  30, 
8  Vol.  1,  Pt  2,  ch.  3. 


PART  IV.]  PRELIMINARY   OBSERVATIONS.  6 

§  4.  It  will  be  observed,  tbat,  by  the  common  law  the  issue  is 
formed  by  the  parties  themselves  through  their  attorneys  ;  the 
court  having  nothing  to  do  with  the  progress  of  the  altercation, 
except  to  see  that  it  is  conducted  in  the  forms  of  law ;  and  it  al- 
ways consists  of  a  single  proposition,  precisely  and  distinctly  stated. 
The  advantages  of  this  mode  over  all  others  in  use,  especially 
where  the  trial  is  by  jury,  arc  strikingly  apparent.  The  opposite 
to  this  method  is  that  whicli  was  pursued  in  the  Roman  tribunals, 
and  which  still  constitutes  a  principal  feature  in  the  proceedings 
in  the  courts  of  Continental  Europe  ;  by  which  the  complaint  of 
the  plaintiff  may  be  set  forth  at  large,  with  its  circumstances  and 
in  all  its  relations,  even  to  diffuseness,  in  his  bill  or  libel,  and  the 
answer  and  defence  of  the  defendant  may  be  made  with  equal  va- 
riety and  minuteness  of  detail.  Proceedings  in  this  form  are  ut- 
terly unfit  for  trial  by  a  jury  ;  and  accordingly,  when  material 
facts  are  to  bo  settled  in  chancery,  in  England,  the  chancellor  or- 
dinarily directs  proper  issues  to  be  framed  and  sent  for  trial  to  the 
courts  of  common  law.  In  the  United  States,  the  same  course  is 
pursued  wherever  the  equity  and  common-law  jurisdictions  are 
vested  in  separate  tribunals.  But  where  the  courts  of  common 
law  are  also  clothed  with  chancery  powers,  if  important  facts  are 
asserted  and  denied,  which  are  proper  to  be  tried  by  a  jury,  the 
court  in  its  discretion,  will  direct  the  making  up  and  trial  of 
proper  issues  at  its  own  bar.^  In  the  courts  of  the  States  of  Con- 
tinental Europe,  where  the  forms  of  procedure  are  derived  from 
the  Roman  law,  the  necessity  has  been  universally  felt  of  adopting 
some  method  of  extracting,  from  the  multifarious  counter-allega- 
tions of  the  parties  the  material  points  in  controversy,  the  decision 
of  which  will  finally  terminate  the  suit ;  and  various  modes  have 
been  pursued  to  attain  this  necessary  object.  In  the  courts  of 
Scotland,  where  tlie  course  of  procedure  is  still  by  libel  and  an- 
swer, the  practice  since  the  recent  introduction  of  trials  by  jury,  is 
for  the  counsel  first  to  prepare  and  propose  the  issues  to  be  tried, 
and  if  these  are  not  agreed  to  (or,  whicli  is  more  usual,  are  omit- 
ted to  be  prepared),  the  clerks  frame  the  issues,  which  are  sent  to 
the  Lord  Ordinary  for  his  approval.  In  all  these  methods,  the 
point  for  decision  is  publicly  adjusted  by  a  retrospective  selection 
from  the  pleadings  ;  but  in  the  more  simple  and  certain  method 
of  the  common  law,  the  altercations  of  the  parties,  being  conducted 

*  Charles  River  Bridge  v  Warren  Bridge,  7  Pick.  344 


6  LAW   OF   EVIDENCE.  |_PART  IV 

by  the  established  rules  of  good  pleading,  will  by  the  mere  opera- 
tion of  these  rules,  finally  and  unerringly  evolve  the  true  point  in 
dispute  in  the  form  of  a  single  proposition. 

§  5.  Of  the  issues  thus  raised,  some  are  termed  general  issues  ; 
others  are  special.  The  general  issue  is  so  called,  because  it  is  a 
general  and  comprehensive  denial  of  the  whole  declaration,  or  of 
the  principal  part  of  it.  The  latter  kind  of  issue  usually  arises  in 
some  later  stage  of  the  pleadings,  and  is  so  called  by  way  of  dis- 
tinction from  the  former.  Tlie  general  issue,  as  will  be  more  dis- 
tinctly seen  in  its  proper  place,  puts  in  controversy  the  material 
part  of  the  declaration,  and  obliges  the  plaintiff  to  prove  it  in  each 
particular.  Thus  upon  the  plea  of  not  guilty,  in  trespass  quare 
clausum  f regit,  the  plaintiff  must  prove  his  possession  by  right  as 
against  the  defendant,  the  unlawful  entry  of  the  defendant,  and 
the  damages  done  by  him,  if  more  than  nominal  damages  are 
claimed.  But  if  the  defendant  specially  pleads,  that  the  plaintiff 
gave  him  a  license  to  enter,  then  no  evidence  of  the  plaintiff's  title 
or  possession,  or  of  the  defendant's  entry  need  be  adduced,  the  fact 
of  the  license  being  alone  in  controversy. 

§  6.  The  form  of  the  general  issue  in  assumpsit  is,  "  that  the 
defendant  did  not  promise  (or  undertake)  in  manner  and  form," 
&G.  This  would  seem  to  put  in  issue  only  the  fact  of  his  having 
made  the  promise  alleged  ;  and  so,  upon  true  principle,  it  appears 
to  have  been  originally  regarded.  But  for  a  long  time  in  England, 
and  still  in  the  American  courts,  a  mucli  wider  effect  has  been 
given  to  it  in  practice  ;  the  defendant  being  permitted,  under  this 
issue,  to  give  in  evidence  any  matter,  showing  that  the  plaintiff  at 
the  time  of  the  commencement  of  the  suit,  had  no  cause  of  action.^ 
The  same  latitude  has  been  allowed,  under  the  general  issue  of 
not  guilty,  in  actions  of  trespass  on  the  case  ;  by  permitting  the 
defendant  not  only  to  contest  the  truth  of  the  declaration,  but,  in 
most  cases,  to  prove  any  matter  of  defence  tending  to  show  that 
the  plaintiff  has  no  right  of  action,  even  though  the  matter  be  in 
confession  and  avoidance,  such,  for  example,  as  a  release  or  a  satis- 
faction given. 2 

§  7.  It  is  obvious  that  so  very  general  a  mode  of  pleading  and 
practice,  is  contrary  to  one  of  the  great  principles  of  the  law  of 
remedy,  which  is,  that  all  pleadings  should  be  certain,  that  is, 
should  be  distinct  and  particular ;  in  order  that  the  pai'iy  may 

1  Stephen  on  Pleading,  pp.  179,  180.  »  Ibid.  pp.  182,  183. 


PART  IV.]  PRELIMINABY   OBSERVATIONS.  7 

have  a  full  knowledge  of  what  he  is  to  answer,  and  to  meet  in 
proof  at  the  trial,  as  well  as  that  the  jury  may  know  what  they 
are  to  try,  and  that  the  courts  may  know  not  only  what  judgment 
to  render,  but  whether  the  matter  in  controversy  has  been  pre- 
cisely adjudicated  upon  in  a  previous  action.  To  the  parties  them- 
selves this  distinctness  of  information  is  essential  on  principles  of 
common  justice.  Tliese  considerations  led  to  the  passage  of  an 
act,^  in  England,  under  which  the  courts  have  corrected  the  abuse 
of  the  general  issue,  by  restricting  its  meaning  and  application  to 
its  original  design  and  efifect.^ 

§  8.  Thus,  in  all  actions  of  assumpsit,  except  on  bills  of  ex- 
change and  promissory  notes,  the  general  issue  by  the  English 
rules  now  operates  only  as  a  denial  in  fact  of  the  express  contract 
or  promise  alleged,  or  of  the  matters  of  fact  from  wliich  the  con- 
tract or  promise  alleged  may  be  implied  by  law.  In  actions  on 
bills  of  exchange  and  promissory  notes  the  plea  of  non  assumpsit  is 
no  longer  admissible,  but  a  plea  in  denial  must  traverse  some  par- 
ticular matter  of  fact.  All  matters  in  confession  and  avoidance, 
whether  going  to  the  original  making  of  the  contract  or  to  its  sub- 
sequent discharge,  must  now  be  specially  pleaded.  The  plea  of 
non  est  factum,  in  debt  or  covenant,  is  restricted  in  its  operation,  to 
the  mere  denial  of  the  execution  of  the  deed,  in  point  of  fact ;  all 
other  defences,  whether  showing  the  deed  absolutely  void  or  only 
voidable,  being  required  to  be  specially  pleaded.  The  plea  of  non 
detinet,  also,  now  puts  in  issue  only  the  detention  of  the  goods,  and 
not  the  plaintifTs  property  therein.  In  actions  on  the  case,  the 
plea  of  not  guilty  is  now  restricted  in  its  effect  to  a  mere  denial  of 
the  breach  of  duty  or  wrongful  act,  alleged  to  have  been  committed 
by  the  defendant,  and  not  of  the  facts  stated  in  the  inducement ; 
in  actions  of  trespass  quare  clausum  fregit,  the  same  plea  operates 
only  as  a  denial  that  the  defendant  committed  the  act  alleged  in 
the  place  mentioned,  and  not  a  denial  of  the  plaintifTs  possession 
or  title  ;  and  in  actions  of  trespass  de  bonis  asportatis,  this  plea 
operates  only  as  a  denial  of  the  fact  of  taking  or  damaging  the 
goods  mentioned,  but  not  of  the  plaintiff's  property  therein. 

§  9.  While  the  learned  judges  in  England  have  thus  labored  to 
restore  this  part  of  the  system  of  remedial  justice  to  more  perfect 
consistency,  by  limiting  the  general  issue  to  its  original  meaning, 

1  3  &  4  W.  4,  C.  42. 

•  See  Regnla  Generalea,  Hil.  T.  1834;  10  Bing.  453-475. 


8  LAW   OF   EVIDENCE.  [PART  IV. 

thus  securing  greater  fairness  in  the  trial  hj  preventing  the  possi- 
bility of  misapprehension  or  surprise,  the  course  of  opinion  and 
practice  in  the  United  States  seems  to  have  tended  in  the  opposite 
direction.  The  general  issue  is  here  still  permitted  to  include  all 
the  matters  of  defence,  ■which  it  embraced  in  England  prior  to  the 
adoption  of  the  New  Rules  ;  and  in  several  of  the  States  the  de- 
fendant is  by  statute,  allowed  in  all  cases  to  plead  the  general 
issue,  and  under  it  to  give  in  evidence  any  special  matter  pleada- 
ble in  bar,  of  which  he  has  given  notice  by  a  brief  statement,  filed 
at  the  same  time  with  the  plea,  or  within  the  time  specified  in  the 
rules  of  tlie  respective  courts.^  In  some  States,  however,  the 
course  of  remedy  is  by  petition  and  answer,  somewhat  similar  to 
proceedings  in  equity. 

§  10.  Amid  such  diversities  in  the  forms  of  proceeding,  it  is 
obviously  almost  impossible  to  adjust  a  work  like  this  to  the  par- 
ticular rules  of  local  practice,  without  at  the  same  time  confining 
its  usefulness  to  a  very  small  portion  of  the  country.  Yet  as,  in 
every  controversy,  under  whatever  forms  it  may  be  conducted,  the 
parties  may  come  at  last  to  some  material  and  distinct  proposition, 
affirmed  on  one  side  and  denied  on  the  other ;  and  as  the  declara- 
tions and  pleas  and  the  rules  of  good  pleading,  adopted  in  the 
courts  of  common  law,  exhibit  the  most  precise  and  logical  method 
of  allegation,  the  principles  of  which  are  acknowledged  and  ob- 
served in  all  our  tribunals,  it  may  not  be  impracticable  by  adher- 
ing to  these  principles,  to  lay  down  in  the  following  pages  some 

^  Sec  New  York  Rev.  Stat.  Vol.  2,  p.  common  law  of  pleading  is  not  totally 
352,  §  10  ;  Maine  Rev.  Stat.  ch.  115,  §  18 ;  abolished,  though  exceptions  of  form,  by 
LL.  Ohio,  ch.  822,  §  48  (Chase's  ed.)  ;  special  demurrer,  can  no  longer  be  taken. 
LL.  Tennessee,  1811,  ch.  114.  In  Massa-  Of  the  wisdom  of  such  wide  departures 
chusetts,  this  privilege  is  given  only  in  cer-  from  the  distinctness  and  precision  of  alle- 
tain  specified  cases.  See  Mass.  Rev.  Stat,  gation  required  from  both  parties  by  the 
ch.  21,  §  49  ;  ch.  58,  §  17  ;  ch.  85,  §  11  ;  common  law,  grave  doubts  are  entertained 
ch.  100,  §§  26,  27;  ch.  112,  §  3;  but  in  by  many  of  the  profession;  especially 
nearly  all  the  States  it  is  accorded  to  jus-  where  the  rules  do  not  require  the  plaintiff 
tices  of  the  pe.ace,  and  other  public  officers  to  file  any  notice  of  the  reply,  intended  to 
and  their  agents,  in  actions  for  anything  be  made  to  the  matter  set  up  in  defence. 
done  by  them  in  the  course  of  their  official  Nor  is  it  readily  perceived  how  tlie  courts 
duties  ;  the  statutes  being  similar  to  21  can  administer  equal  and  certain  justice  to 
Jac.  I,  c.  52,  and  other  English  statutes  on  the  parties,  without  adopting,  in  the  shape 
this  subject.  [By  the  Practice  Act  of  1852,  of  rules  of  practice,  or  in  some  other  form, 
(Acts  i852,  ch.  312,)  the  general  issue  in  the  principle  of  the  common  law,  which 
personal  actions  is  abolished  in  Massachu-  requires  that  each  party  be  seasonably  and 
setts,  and  the  defendant  is  required  to  file  distinctly  informed,  by  the  record,  of  the 
an  answer  to  tlie  plaintiffs  declaration.]  proposition  intended  to  be  maintained  by 
In  Maine,  the  plaintiff  may  file  a  counter  his  adversary  at  the  trial,  that  he  may  eomo 
brief  statement  of  any  matter  on  which  he  prepared  to  meet  it.  But  these  are  con- 
intends  to  rely,  in  avoidance  of  the  matter  siderations  more  properly  belonging  to  an- 
contained  in  the  brief  statement  of  the  other  place, 
defendant ;   so  that  the  substance  of  the 


PART  IV.]  PRELIMINARY   OBSERVATIONS.  9 

rules  which  will  he  found  generally  applicahle,  under  whatever 
modifications  of  the  common  law  of  remedy  justice  may  he  admin- 
istered. 

§  11.  A  further  preliminary  observation  may  here  be  made,  ap- 
plicable to  every  action  founded  on  a  written  document,  namely, 
that  the  first  step  in  the  evidence  on  the  side  of  the  plaintiff,  is  the 
production  of  the  document  itself.  If  tliere  is  any  variance  bo 
twcen  the  document  and  the  description  in  the  declaration,  it  will, 
as  we  have  previously  seen,^  be  rejected.  If  the  variance  is  occa- 
sioned by  a  mere  mistake  in  setting  out  a  written  instrument,  the 
record  may  generally  be  amended  Ijy  leave  of  the  court,  under  the 
statutes  of  amendment  of  the  United  States,  and  of  the  several 
states;  and  in  England  under  Lord  Tenterden's  act.^  Thus, 
where  a  written  contract  l)y  letter  was  set  forth  as  a  promise  to 
pay  for  certain  goods,  and  on  production  of  the  letter,  the  contract 
appeared  to  bo  an  undertaking  to  guarantee  to  the  plaintiff  the 
amount  supplied,  an  amendment  was  permitted .^  But  if  the  vari- 
ance is  occasioned  by  the  allegation  of  a  matter  totally  different 
from  that  offered  in  evidence,  it  will  not  be  amended.  Thus, 
where,  in  a  declaration  for  a  malicious  arrest,  the  averment  was 
that  the  plaintiff  in  that  action  '*  did  not  prosecute  his  said  suit, 
but  therein  made  default,"  and  the  proof  by  the  record  was,  that 
ho  obtained  a  rule  to  discontinue,  the  plaintiff  was  not  permitted 
to  amend,  the  matter  being  regarded  as  totally  different.* 

§  11  a.  The  general  practice  in  these  cases  may  be  illustrated 
by  a  few  examples.  And  first,  in  regard  to  amendments  of  the  pro- 
cess  in  the  names  of  parties.  The  rule  of  the  common  law,  that  no 
new  parties  can  be  added  by  amendment,^  is  believed  to  be  univer- 
sally adopted  in  the  United  States  ;  though  in  some  few  States  the 
common  law  in  this  respect  has  been  changed  by  statutes,  which 
permit  this  to  be  done  in  certain  cases  at  law,  as  is  done  in  all 
cases  in  courts  of  equity.  But,  generally,  parties  unnecessarily  and 
improperly  made  such,  and  having  no  interest  in  the  matter,  may 
be  stricken  out,  where  the  cause  or  nature  of  the  action  is  not  af- 

»  Vol.  1,  §§  56,  58,  61,63,  65,  66.  69,  70.  ^  g  Qeo.  4,  c  15.    See  also  St.  3  &  4  W. 

Tlier:  ii  a  material   distinction    between  4,  c.  42. 

mere  ail.jjations,  and  matter  of  description.  *  Hanbury  t^.  Ella,  1  Ad.  &  El.  61. 

lu  m.  re  matters  of  allc;;ation,  a  variance  *  Webb  r.  Hill,  1  M.  &  Malk.  233,  per 

in  proof,  ju  to  time,  number,  or  quantity,  Ixl.  Tcntcrden. 

does  not  atfect  tbc  plaintitTs  right  of  re-  ^  Winslow  v.  Merrill,  2  Fairf.  127;  Wil- 

covcry  ;  but  in  matters  of  description,  a  son  i-.  Wallace,  8  S.  &  R.  53 ;  Atkinsoa  v. 

'ariance  in  time  is  fatal.   Gates  v.  Bowkcr,  Clapp,  1  Wend.  71. 
I«  Verm.  K.  23. 


10  LAW   OF   EVIDENCE.  [PART  IV. 

fected,  and  no  injury  can  accrue  to  tlie  defendant.  Thus,  if  tlio 
wife  is  improperly  made  defendant  with  the  husband  in  an  action 
on  a  contract  made  during  coverture  ;  ^  or  if  several  are  sued  in 
covenant,  and  on  oyer  had,  it  appears  that  some  of  them  never  be- 
came parties  to  the  deed  ;  ^  the  names  improperly  inserted  may  be 
stricken  out  of  the  process.  But  if  such  amendment  will  change 
the  ground  of  action,  or  have  the  effect  of  constituting  a  different 
party  to  the  record,  as,  if  the  suit  be  against  two  as  partners,  and 
it  is  proposed  to  amend  by  erasing  the  name  of  one,  and  so  making 
it  a  suit  against  the  other  in  his  several  capacity,  it  will  not  be  al- 
lowed.^ If  the  name  of  the  party  be  misspelled,  or  the  designation 
oi  junior  be  omitted,  or  a  corporation  be  sued  by  a  wrong  name, 
the  service  of  process  being  right,  the  mistake  may  be  amended.* 
So,  also,  the  process  may  be  amended  by  stating  the  capacity  or 
trust  in  which  the  plaintiff  sues,  such  as  trustee  or  other  officer  or 
agent  of  a  society  beneficially  interested  in  the  suit,  or  the  like  ; 
or,  if  an  infant,  by  inserting  the  name  of  his  next  friend.^  So,  a 
scire  facias  may  be  amended  by  the  record  on  which  it  is  founded.^ 
§  11  h.  In  the  next  place,  as  to  amendjnents  of  the  pleadings. 
The  general  doctrine  of  variance  having  already  been  discussed  in 
the  preceding  volume,'^  it  will  suffice  here  to  remark,  that  the 
courts  manifest  an  increasing  disposition  to  give  to  the  statutes  of 
amendments  the  most  beneficial  effect,  not  suffering  the  end  of  the 
suit  to  be  defeated,  where  the  record  contains  the  substance  of  a 
valid  claim,  and  an  amendment  is  seasonably  asked  for.  The 
American  statutes  on  this  subject  give  to  the  courts  much  broader 
discretionary  powers  than  are  given  by  any  English  statutes,  prior 
to  Lord  Tenterden's  act ;  and  powers  scarcely  exceeded  by  that 
and  the  later  statutes.^     Accordingly,  the  only  question  in  regard 

1  Colcord  V.  Swan,  7  Mass.  291  ;  Par-  v.  Howe,  10  Mass.  203;  Bullard  v.  Nan- 
sons  V.  Plaisted,  13  Mass.  189;  Whitbeck  tucket  Bank,  5  Mass.  99;  Sherman  v.  Con- 
»,  Cook,  15  Johns.  483.  necticut    River    Bridge,    11    Mass.    338; 

2  McClure  v.  Burton,  1  Car.  Law  Repos.  Burnham  v.  StraiFord  Savings  Bank,  5  N. 
472.     And  see  Wilson  v.  King,  6   Yerg.  Hamp.  573. 

493,  ace.      But  see  Redington  v.  Farrar,  ^  Anderson  v.  Brock,   3   Greenl.  243 ; 

5  Greenl.  379,  where,  in  assumpsit  against  Blood  v.  Harrington,  8  Pick.  552. 

two,  an  amendment  by  striking  out  the  ^  Maus  v.  Maus,  5  Watts,  345 ;  Moody 

name  of  one  of  them  was  refused.  v.  Stracey,  4  Taunt.  558 ;  Williams  v.  Lee, 

3. Peck  I'.  Sill,  3  Conn.  R.  157.  Whether  2  Taylor,  146;   Burrows  v.   Heysham,  1 

a  writ  of  entry  may  be  amended  by  strik-  Dall.  133  ;  Hazeldlne  v.  Walker,  1  Har.  & 

ing  out  the  name  of  one  of  the  demandants,  Johns.  487  ;   Patrick  v.  Woods,  3  Bibb, 

qucere.     See  Treat  v.  McMahon,  2  Greenl.  232. 

120;  Pickett  v.   King,  4  N.  Hamp.  212,  7  See  an^e,  Vol.  1,  §  63-73. 

that  it  may  not  be.     Rehoboth  v.  Hunt,  *  See  6  Dane's  Abr.  ch.  184,  art.  1,  §3; 

1  Pick.  224,  that  it  may  be.  art.  11,  §§  7,  8. 

*  Furniss  v.  Ellis,  2  Brock.  14  ;  Kincaid 


PART  IV.]  PRELIMINARY   OBSERVATIONS.  11 

to  the  admissibility  of  an  amendment  of  the  pleadings  now  is, 
whether  it  introduces  another  and  distinct  cause  of  controversy. 
If  it  does  not,  but  the  original  cause  of  action  or  ground  of  title 
or  defence  is  adhered  to,  the  allegations  and  pleadings  may  be 
amended.^  Thus,  if,  in  an  action  for  money  had  and  received, 
the  promise  be  laid  as  made  by  the  administrator,  when  it  was  the 
promise  of  his  intestate  ;  ^  or,  if  the  allegation  of  a  demand  be 
omitted  where  it  was  necessary  to  the  foundation  of  the  action  ; ' 
or  if  the  indorser  of  a  note  in  blank  be  charged  as  an  original 
promisor,  when  he  should  have  been  charged  as  a  guarantor  ;  *  or 
if  the  loss  of  a  vessel  be  alleged  to  have  been  by  capture  and  by 
perils  of  the  sea,  when  it  was  by  barratry ;  *  or  if,  in  trover,  for 
promissory  notes,  or  in  assumpsit  to  recover  the  money  due  upon 
them,  they  are  misdescribed  ;  ®  in  these  and  the  like  cases  the 
errors  may  be  amended.  But  to  add  counts  upon  other  promissory 
notes  will  not  be  allowed  ;^  nor  will  the  plaintiff  be  permitted  to 
amend,  in  an  action  against  the  sheriff  for  a  false  return  of  bail 
when  none  was  taken,  by  adding  a  count  for  refusing  to  deliver  the 
bail-bond,  mentioned  in  liis  return.' 

§  11  c.  The  recent  English  statutes  having  been  framed  for  the 
like  objects,  it  may  be  useful  here  to  advert  to  their  provisions  and 
the  decisions  under  them.  The  statute,  termed  Lord  Tenterden's 
Act^  empowers  the  courts  "  to  cause  the  record,  on  which  any 
trial  may  be  pending  in  any  civil  action,  or  in  any  indictment  or 
information  for  any  misdemeanor,  when  a  variance  shall  appear  he 
tween  any  matter  in  meriting  or  in  print  produced  in  evidence^  and  the 
recital  or  setting  forth  thereof  upon  the  record  tvhereon  the  trial  is  pend- 
ing^ to  be  forthwith  amended  in  such  particular,"  on  payment  of 
such  costs,  if  any,  as  the  court  shall  think  reasonable.  By  a  sub- 
sequent statute,^*'  this  power  was  extended  not  only  to  civil  actions, 
but  to  informations  in  the  nature  of  a  quo  ivarranto,  and  proceed- 
ings on  a  mandamus,  the  courts  being  authorized,  "  tvhen  any  vari 

1  Hnvnes  v.  Morgan,  3  Mass.  208 ;  Ball         »  Anon.  15  S.  &  R.  8.3. 

r.  Clatlin,  5  Pick.  304  ;  Cassell  v.  Cooke,  ^  Ho»lnagle    i-.    Lcavitt,    7    Cow.    517; 

8  S.  &  R.  287,  per  Duncan,  J. ;  Cunning-  Stanwood  v.  Scovell,  4  Pick.  422. 

ham    V.   Day,    2    S.    &  R.    1  ;    Ke^ter  v.  '  Farm.  &.  Mech.  Bank  v.  Israel,  6  S.  4 

Stokes,  4   Miles,   67 ;    Commonwealth    i;.  R.  294. 

Mecklinp,  2  Wntts,  130;  Ebcrsoll  c.  Krng,  'Eaton    v.    Ofrier,    2    Greenl.  46.     Se« 

5  Binn.  53,  per  Tilghman,  C.  J. ;  PuUen  i;.  further,  Buttertield  v.  Harrell,  3  N.  Hamp. 

Hutchinson,  12  Shcpl.  249.  201  ;  Edgerley  v.  Emerson,  4  N.  Hamp. 

2  Eaton  V.  Whitaker,  6  Pick.  465.  147  ;  Carpenter  v.  Gookin,  2  Verm.  495. 
'  Ewing  V.  French,  1  Blackf.  170.  ^  Stat.  9  Geo.  4,  c.  15. 

*  Tenney  i;.  Prince,  4  Pick.  385.  •  w  Stat.  3  &  4  W.  4.  c.  42. 


12  ,  LAW   OF   EVIDENCE.  LPART  IV 

ance  sJiall  appear  hettveen  the  proof  and  the  recital  or  setting  forth  on 
the  record,  writ,  or  document  on  ivhich  the  trial  is  proceedinr/,  of  any 
contract,  custom,  prescription,  name,  or  other  matter,  in  any  particu- 
lar, —  in  the  judgment  of  tlie  court  or  judge  not  material  to  the 
merits  of  the  case,  and  by  which  the  opposite  party  cannot  have 
been  prejudiced  in  the  conduct  of  his  action,  prosecution,  or  de- 
fence, to  be  forthwith  amended,"  upon  such  terms  as  to  payments 
of  costs,  or  postponing  the  trial,  or  both,  as  the  court  or  judge 
shall  think  reasonable  ;  and  if  the  amendment,  being  in  a  particu- 
lar not  material  to  the  merits,  is  such  as  that  the  opposite  party 
may  have  been  prejudiced  thereby  in  the  conduct  of  his  suit  or  de- 
fence, then  upon  such  terms  as  to  payment  of  costs,  and  withdraw- 
ing the  record,  or  postponing  the  trial,  as  the  court  or  judge  shall 
think  reasonable. 

§  11  d.  These  statutes  have  been  administered  in  England  In 
the  liberal  spirit  in  which  they  were  conceived  ;  care  being  taken, 
as  in  the  United  States,  that  no  new  and  distinct  cause  of  contro 
versy  be  created.  Thus,  in  slander,  where  the  words  charged 
were,  "  S.  is  to  be  tried,"  for  buying  stolen  goods,  and  the  words 
proved  were,  "  I  have  heard  that  he  is  to  be  tried,"  an  amendment 
was  allowed,  as  it  went  only  to  the  amount  of  the  damage^,  and 
not  to  the  merits  of  the  action.^  So,  where  the  words  stated  were 
English,  and  the  words  proved  were  Welsh.^  So,  where  the  alle- 
gation was  of  a  libel  published  in  a  certain  newspaper,  and  the  proof 
was  of  a  slip  of  printed  paper,  not  appearing  to  have  been  cut  from 
that  newspaper,  though  the  newspaper  contained  a  similar  article.^ 
So,  where  the  plea  to  an  action  upon  a  bill  of  exchange  was,  that 
the  bill  was  given  for  two  several  sums  lost  at  play  in  two  several 
games,  and  the  proof  was  that  the  parties  played  at  both  games, 
and  that  the  defendant  lost  the  gross  sum  in  all,  but  not  that  he 
lost  any  amount  at  one  of  the  games,  it  was  held  amendable.*  An 
amendment  has  also  been  allowed  in  assumpsit  upon  the  warranty 
of  a  horse,  where  a  general  warranty  was  alleged,  and  the  proof 
was  of  a  warranty  with  the  exception  of  a  particular  foot.^  So, 
where  the  allegation  was  with  a  qualification,  and  the  proof  was 

1  Smith  V.  Knowelden,  2  M.  &  G.  561.  ^  Foster  v.  Pointer,  9  C.  &  P.  718,  per 

2  Jenkins  v.  Phillips,  9  C.  &  P.  766,  per     Gurney,  B. 

Coleridge,  J.     The  contrary  was  held,  un-         *  Cooke  v.  Stafford,  13  M.  &  W.  379. 
der  the  former  statutes.     Zenobio  v.  Ax-         ^  Hemming  v.  Parry,   6  C.  &    P.  o80 

tell,  6  T.  R.  162;  Wormouth  v.  Cramer,  3  See  also  Read  v.  Dunsraore,  9  C.    &  P 

Wend.  394.  588.     ♦ 


PART  IV.]  PRELDIINARY   OBSERVATIONS.  "  13 

of  a  contract  in  general  terms,  without  the  qualification.^  In  like 
manner,  where  the  contract,  instrument,  or  duty,  has  been  misde- 
scribed  in  the  record,  it  is  held  amendable  ;  as,  in  assumpsit  on  a 
charter-party,  where  the  allegation  of  the  promise,  being  intended 
only  as  a  statement  of  the  legal  effect  of  the  instrument,  was  erro- 
neous, the  plaintiff  was  permitted  to  amend,  either  by  striking  out 
the  allegation,  or  by  substituthig  a  corrected  statement.^  So,  in 
assumpsit  "  for  the  use  and  occupation  of  certain  standings,  mar- 
ket-places, and  sheds,"  where  the  proof  was  of  a  demise  of  the  tolls 
to  be  collected  at  those  places,  an  amendment  was  allowed.^  So, 
where  the  promise  alleged  was  to  "  pay  "  for  goods  furnished  to 
another,  and  the  proof  was,  to  "guarantee"  the  payment;'*  and 
where  the  declaration  was  upon  an  instrument  described  as  a  bill 
of  exchange,  but  the  instrument  produced  appeared  in  fact  to  be  a 
promissory  note  ;  ^  and  where  a  guaranty  was  set  forth  as  for  ad- 
vances to  be  made  by  A.,  and  the  proof  was  of  a  guaranty  for  ad- 
vances to  be  made  by  A.,  or  any  member  of  his  firm,  or  e  con- 
verso  ;  ^  and  where  the  declaration  charged  the  defendant  upon  the 
contract  as  a  carrier,  and  the  proof  was,  that  if  liable  at  all,  it  was 
only  as  a  wharfinger,  on  a  contract  to  forward  ;  ^  and  where  the 
contract  alleged  was,  to  build  for  the  plaintiff  a  certain  room, 
booth,  or  building,  according  to  certain  plans  then  agreed  on,  by 
the  28th  of  June,  for  the  sum  of  X20,  and  the  contract  proved 
was,  to  erect  certain  seats  or  tables,  for  X2o,  to  be  completed  four 
or  five  days  before  that  day,  being  the  day  of  the  coronation  ;  ^  and 
where,  in  debt  on  a  bond,  the  penalty  was  stated  to  be  X260,  but 
in  the  bond  produced  it  was  only  .£200  ;^  and  in  case  against  the 
sheriff  for  a  voluntary  escaj>e,  where  the  proof  was,  that  tlie  officer 
did  not  arrest,  but  negligently  omitted  so  to  do,  having  opportu- 
nity ;  ^^  and  even  where,  in  assumpsit  upon  a  promissory  note,  de- 
scribed as  made  by  the  defendant  on  the  9th  of  November,  1838, 

1  Evans  v.  Fn-er,  10  Ad.  &  El.  609.  »  Mayor,  &c.  of  Carmarthen  r.  Lewis,  6 

-  Wliitwill  i;.'Scheer,  8  Ad.  &  El.  301.  C.  &  P.  608. 

But   IQ   a  subsequent  case  of   covenant,  *  Ilanbury  v.  Ella,  1  Ad.  &  El.  61. 

where  it  wiw  objected  that  no  such  cove-  *  Moilliet  v.  Powell,  6  C.  »&  P.  23.3. 

nants  could  be  implied  in  the  deed,  it  was  ^  Chapman   v.   Sutton.  2  Man.  Gr.    & 

hold,  by   Maule,  J.,  that  the  statutes  of  Scott,  634 ;  Boyd  v.  Moyle,  Ibid.  644. 

amendment  were  designed  to  meet  varian-  "  Parry  v.  Fairhurst,  2  C.  M.  &  R.  190; 

ccs  arisint;  from  accidental  slips,  and  not  5  Tyrw.  685. 

to  extend  to  cases  where  the  pleading  has  ^  Ward  r.  Pierson,  5  M.  &  W.   16 ;  ** 

been    intentionally  and    deliberately,  but  Dowl.  382. 

erroneously  framed;  and  he  therefore  re-  •  Hill  i'.  Salt,  2  C.  &M.  420  ;  4  Tyrw.  271. 

fused  to  allow  an  amendment.    Bowers  v.  ^'^  Guest  v.  Elwes,  5  Ad.  &  El.  118  ;  2  N. 

Nixon,  2  Car.  &  Kir.  372.  &,  P.  230. 


14  LAW   OF   EVIDENCE.  [PART  IV. 

for  X250,  payable  on  demand,  the  note  produced  bore  date  No- 
vember 6th,  1837,  and  was  payable  with  interest  twelve  months 
after  date,  it  also  not  appearing  that  there  existed  any  other  note 
between  the  parties  ;  ^  in  these,  and  many  similar  cases,  amend- 
ments have  been  allowed. 

§  11  e.  On  the  other  hand,  the  courts,  acting  under  these  stat- 
utes, have  refused  amendments,  where  the  object  was  merely  to 
supply  material  omissions,  as  well  as  where  the  amendment  will 
probably  deprive  the  defendant  of  a  good  defence,  which  he  other- 
wise might  have  made,  or  would  probably  require  new  pleadings,^ 
or  would  introduce  a  transaction  entirely  different  from  that  stated 
in  the  plea.^  Thus,  an  amendment  has  been  refused  in  trespass, 
to  extend  the  justification  to  certain  articles  omitted  in  the  plea  ;  * 
and  in  replevin,  to  extend  the  avowry  in  the  like  manner.^  So,  to 
enlarge  the  ad  damnum  in  the  declaration.^  So,  in  assumpsit  by 
the  vendee  against  the  vendor  of  goods  for  non-delivery,  where  the 
contract  alleged  was  for  a  certain  price,  and  the  contract  proved 
was  for  the  same  nominal  price,  with  a  discount  of  Jive  per  cent, 
an  amendment  was  refused  as  tending,  under  the  circumstances 
stated  at  the  bar,  to  preclude  a  good  defence.'^  And,  where  the 
plaintiff  alleged  title  to  a  stream  of  water  as  the  possessor  of  a 
mill  which  the  defendant  traversed,  and  the  proof  was  that  he  was 
entitled  only  as  owner  of  the  adjoining  land,  an  amendment  was 
refused  on  the  ground  that  it  might  require  a  change  of  the  issue, 
and  that  the  defendant  may  have  been  misled. by  the  plaintifPs 
mode  of  pleading.^ 

§  12.  It  is  further  to  be  observed,  that  though  every  part  of  a 
written  document  is  descriptive,  and  therefore  material  to  be 
proved  as  alleged,  yet  if,  in  declaring  upon  such  an  instrument 
the  allegation  is,  that  it  was  made  upon  such  a  day,  without  stating 
that  it  hore  date  on  that  day,  the  day  in  the  declaration  is  not  ma- 
terial, and  therefore  need  not  be  precisely  proved  ;  but  if  it  is  de- 

1  Beckett  v.  Button,  7  M.  &  W.  157  ;  ^  vVatkins  v.  Morgan,  6  C.  &  P.  661. 
4  Jur.  993 ;  8  Dowl.  865.  In   the   United   States  it  has   been   held 

2  Perry  v.  Watts,  3  Man.  &  Gr.  775,  otherwise.  See  McLellan  v.  Crofton,  6 
as  explained  in  Gurford  v.  Bayley,  Ibid.  Greenl.  307 ;  Bogart  v.  McDonald,  2 
784.  Johns.  Cas.  219;  Danielson  v.  Andrews, 

3  David  V.  Preece,  5  Ad.  &  EI.  440,  N.  1  Pick.  156.  And  see  Tomilson  v.  Black- 
S.  smith,  7  T.  R.  132. 

*  John  V.  Currie,  6  C.  &  P.  618.  7  ivey  v.  Young,  1  M.  &  Rob.  545. 

5  Bye  &  Bower,  I   Car.  &  Marshm.  262.  »  Frankhum  v.  E.  of  Falmouth,  6  C.  & 

In  the  United  States,  amendments  in  these  P.  529 ;  2  Ad.  &  El.  452. 
two  cases  would  doubtless  be  allowed. 


PART  IV.]  PRELIMINARY   OBSERVATIONS.  15 

scribed  as  hearing  date  on  a  certain  day,  the  date  must  be  shown  to 
be  literally  as  alleged,  and  any  variance  herein  will  be  fatal  unless 
amended.^  The  date  is  not  of  the  essence  of  the  contract,  though 
it  is  essential  to  the  identity  of  the  writing,  by  which  the  contract 
may  be  proved.  The  plaintiff,  therefore,  may  always  declare  accord- 
ing to  the  truth  of  the  transaction,  only  being  careful  if  he  men- 
tions the  writing  and  undertakes  to  describe  it,  to  describe  it  truly  .^ 

§  13.  But  an  immaterial  diacrepaney  between  the  record  and  the 
deed  itself  is  not  regarded.  Thus,  upon  oyer  of  a  deed,  where  the 
declaration  was  that  it  bore  date  in  a  certain  year  of  our  Lord  and 
of  the  then  king,  and  the  deed  simply  gave  the  date  thus,  — 
"  March  30,  1701,"  —  without  mention  of  tlie  Christian  era,  or  of 
the  king's  reign,  it  was  held  well.'  So,  where  the  condition  was, 
"  without  any  fraud  or  other  delay,"  the  omission  of  the  word 
"  other  "  in  the  oyer  was  held  immaterial.*  Nor  will  literal  mis- 
spelling  be  regarded  as  a  variance.^ 

§  14.  Ordinarily,  in  stating  an  instrument  or  other  matter  in 
pleading,  it  should  be  set  forth  not  according  to  its  terms  or  its 
form,  but  according  to  its  effect  in  law  ;  for  it  is  under  its  latter 
aspect  that  it  is  ultimately  to  be  considered.  Thus,  if  a  joint  ten- 
ant conveys  the  estate  to  his  companion  by  the  words  "  give,  grant," 
<fec.,  the  deed  is  to  be  pleaded  as  a  release,  such  only  being  its 
effect  in  law.  So,  if  a  tenant  for  life  conveys  to  the  reversioner 
by  words  of  grant,  it  must  be  pleaded  not  as  a  grant  but  as  a  sur- 
render.' So,  where  a  bill  of  exchange  is  made  payable  to  the  or- 
der of  a  person,  it  may  be  declared  upon  as  a  bill  payable  to  the 
person  himself.^  If  no  time  of  payment  be  mentioned,  the  instru- 
ment should  be  declared  upon  as  payable  on  demand.^  If  a  bill 
be  drawn  or  accepted,  or  a  deed  be  made  by  an  agent  in  the  name 
of  his  principal,  it  should  be  pleaded  as  the  act  of  the  principal 
himself.'*  And  a  bill  payable  to  a  fictitious  person  or  his  order  is, 
in  effect,  a  bill  payable  to  bearer,  and  may  be  declared  on  as  such, 
in  favor  of  a  hand  fide  holder  ignorant  of  the  fact,  against  all  the 
parties  who  had  knowledge  of  the  fiction. ^'^ 

*  Coxon  V.  Lyon,  2  Camp.  307,  n,  ;  the  word  "  sterling,"  aa  descriptive  of  the 
Anon.  2  Camp.  308,  n. ;  Cor.  Lord  Ellen-  kind  of  currency,  is  immaterial.  Kearney 
borontrh.  v.  King,  2  B.  &  Aid.  .301. 

2  Hatrue  r.  French,  3  B.  &  P.  173;  De        *  Stephen  on  PI.  389,  39C. 
la  Courtier  v.  Bellamy,  2  Show.  422.  "i  Smith  v.  M'Clure,  5  East,  476;  Fay 

*  Holman  v.  Borough,  2  Salk.  658.  r.  Goulding,  10  Pick.  122. 

*  Henry  v.  Brown,  19  Johns.  49.  '  Gavlord  v.  Van  Loan,  15  Wend.  308. 
'  Cull  V.  Sarmin,  3  Lev.  66 ;  Wau^'h  r.         »  Hevcs  v.  Haseltine,  2  Camph.  604. 

Boflsell,  5  Taunt.  707.     The  omission  of        i»  Chitty  on  Bills,  178:  Bnyley  on  Bills 


16  LAW   OF   EVIDENCE.  [PART  IV. 

§  15.  But,  on  the  other  hand,  it  will  not  always  suffice  to  ad- 
here to  the  literal  terms  of  the  instrument,  in  setting  it  forth  in  the 
declaration  ;  for  sometimes  the  true  interpretation  of  the  instru 
ment  itself  may  lead  to  a  result  totally  different  from  the  intend- 
ment of  law  upon  the  face  of  the  declaration.  Thus,  whore  a  hill 
was  drawn  and  dated  at  Dublin,  for  a  certain  sum,  and  in  the 
pleadings  it  was  described  as  drawn  "  at  Dublin,  to  wit,  at  West- 
minster," without  any  mention  of  Ireland,  or  of  Irish  currency,  it 
was  held,  that  here  was  a  material  variance  between  the  allegation 
and  the  evidence.  For  though  the  place  and  the  sum  corre- 
sponded, even  to  the  letter,  yet  by  the  legal  interpretation  of  the 
bill,  the  currency  intended  was  Irish,  whereas  by  the  allegation  in 
the  record,  the  court  could  not  legally  understand  any  other  than 
British  sterling,  because  no  other  was  averred,  and  the  bill  was  not 
alleged  to  have  been  drawn  in  Ireland.^  So,  where  a  note  was 
made  without  any  mention  of  the  time  of  payment,  and  none  was 
averred  in  the  declaration,  the  judgment  was  reversed  upon  error 
brought,  the  plaintiff  not  having  declared  upon  the  contract  accord- 
ing to  its  legal  effect,  but  on  the  evidence  only .2 

§  16.  In  regard  to  the  proof  of  the  formal  execution  of  deeds, 
bills  of  exchange,  and  other  written  documents,  it  was  formerly  the 
right  of  the  adverse  party  to  require  precise  proof  of  all  signatures 
and  documents,  making  part  of  the  chain  of  title  in  the  party  pro- 
ducing them.  But  the  great  and  unnecessary  expense  of  this 
course,  as  well  as  the  inconvenience  and  delay  which  it  occasioned, 
have  led  to  the  adoption  of  salutary  rules,  restricting  the  exercise 
of  the  right  to  cases,  where  the  genuineness  of  the  instrument  is 
actually  in  controversy,  being  either  put  in  issue  by  the  pleadings 
or  by  actual  notice,  given  pursuant  to  the  rules  of  the  court.-"^ 

26,  431 ;  Grant  v.  Vaughan,  3  Burr.  1516 ;  may  give  notice  to  tlie  other  of  his  inten- 

Minet  v.  Gibson,  1  R,  Bl.  569 ;  Storj  on  tion  to  adduce  in  evidence  certain  written 

Bills,  §  56.  or  printed  documents ;  and  unless  the  ad- 

1  Kearney  v.  King,  2  B.  &   Aid.  301.  verse  party  shall  consent  in  the  manner 

Proof  of  a  contract  for bushels  oats  therein  prescribed,  to  admit   their  formal 

according  to  the  Harlland  Quay  measure,  will  execution,  or  the  truth  of  the  copies  to  be 

not   support  a  declaration   for   the  same  adduced,  he  may  be  summoned  before  a 

quantity  without  any  mention  of  the  kind  of  judge  to  show  cause  why  he  should  not 

measure.     Plockin  v.  Cooke,  4  T.  R.  314.  consent  to  such  admission,  and  ultimately, 

2  Bacon  v.  Paige,  1  Conn.  R.  404.  But  if  the  judge  shall  deem  the  application 
see  Herrick  v.  Bennett,  8  Johns.  374,  reasonable,  may  be  compelled  to  pay  the 
■where  such  a  declaration  was  held  well  on  costs  of  the  proof.  See  also  Tidd's  New 
demurrer.  Practice,  pp.  481,  482.     In  some  of  the 

3  By  the  rules  of  Hill.  T.  1834,  Reg.  20  United  States,  the  original  right  to  re- 
(10  Bing.  456),  either  party,  after  plea  quire  formal  proof  of  documents,  remains 
Dleaded,  and  a  reasonable  time  before  trial,  as  at  common  low,  unrestricted  by  rules 


PART  IV.] 


PRELIMINARY   OBSERVATIONS. 


IT 


§  17.  If  the  instrument  declared  on  is  lost,  the  fact  of  the  loss 
may  be  proved  by  the  affidavit  of  the  plaintiff,  a  foundation  being 
first  laid  for  this  proof  by  evidence,  that  the  instrument  once  ex- 
isted, and  that  diligent  search  has  been  made  for  it  in  the  places 
where  it  was  likely  to  be  found. ^ 

We  now  proceed  to  the  consideration  of  the  evidence  to  be  of- 
fered under  particular  issues  in  their  order. 


of  court.  In  others,  it  has  been  restricted 
either  to  cases  where  the  genuineness  of 
the  document  has  been  put  in  issue  by  the 
plcadinj^s,  or  where  the  previous  notice  of 
an  intention  to  dispute  it  has  been  season- 
ably given;  (Reg.  Gen.  Sup.  Jud.  Court, 
Mass.  1836,  Reg.  LIII.  24  Pick.  399)  ;  or 
where  the  attorney  has  been  instructed  by 
his  client  that  the  signature  is  not  genu- 
ine ;  or  where  the  defendant,  being  pres- 
ent in  court,  shall  expressly  deny  that  the 
signature  is  his.  (Keg.  Gen.  Sup.  Jud. 
Court,  Maine,  1822,  Keg.  XXXIII.  I 
Greenl.  421.)  In  the  Circuit  Court,  U.  S., 
First  Circuit,  the  defcnd:iiu  is  not  permit- 
ted to  deny  his  signature  to  a  note  or  bill 
of  exchange,  or  the  signature  of  a  prior 
indorser,  unless  upon  affidavit  made  of 


reasonable  cause,  necessary  for  his  do- 
fence.  Reg.  34.  In  the  Seventh  Circuit, 
the  rule  requires  that  the  defendant  shall 
first  make  affidavit  that  the  instrument  was 
not  executed  by  him.  And  this  rule  has 
been  held  to  be  legal,  under  the  Judiciary 
Act  of  March  2,  1793,  c.  22.  Mills  v. 
Bank  of  the  United  States,  II  Wheat. 
439,  440.  By  the  law  of  South  Carolina, 
the  plaintiff  is  not  obliged  to  produce  the 
subscribing  witnesses  to  a  bond  or  note, 
but  may  prove  its  execution  by  any  other 
witness,  unless  the  defendant  will  swear 
that  it  is  not  his  signature.  Statutes  at 
Large,  Vol.  5,  p.  435.  As  to  the  proof,  in 
equity,  of  the  execution  of  instrumeat«, 
Bee  post,  Vol.  3,  §  308,  and  note. 
1  AnU,  Vol.  1,  §§  349,  5M 


VOL.  a. 


IS  LAW   OF  EVIDENCE.  [PART  IV 


ABATEMENT. 

[*  §  18.  Only  especial  causes  of  abatement  treated  of  in  this  chapter. 

19.  Plea  of  alien  enemy  must  be  pleaded  with  the  highest  degree  of  legal  certainty 

20.  In  plea  of  service  of  process  on  improper  day,  the  day  will  be  noticed  by  court 
21..  In  plea  of  misnomer,  unnecessary  allegation  of  baptism  must  be  proved. 

22.  Grand  juror  may  testify  that  twelve  of  the  grand  jury  did  not  concur  in  find- 

ing bill. 

23.  In  real  actions  non-tenure  is  a  plea  in  abatement.     Tenure,  how  proved. 

24.  Plea  in  abatement  of  non-joinder  of  proper  parties,  how  proved. 

25.  Proof  of  secret  partners  will  not  support  it.     How  rebutted,  in  case  of  ostensi- 

ble  partners. 

26.  Pendency  of  a  prior  suit,  how  proved. 

27.  There  will  be  peremptory  judgment  for  plaintiff  when  a  fact  is  pleaded  in 

abatement,  and,  on  issue  taken,  found  for  plaintiff.] 

§  18.  Such  of  the  causes  of  abatement  as  may  also  be  pleaded 
in  bar,  will  generally  be  treated  under  their  appropriate  titles.  It 
is  proposed  here  to  consider  those  only  which  belong  more  espe- 
cially to  this  title.^ 

§  19.  The  plea  of  alien  memy  must  be  pleaded  with  the  highest 
degree  of  legal  certainty,  or,  as  it  is  expressed  in  the  books,  with 
certainty  to  a  certain  extent  in  particular  ;  that  is,  it  must  be  so 
certain  as  to  exclude  and  negative  every  case  in  which  an  alien 
enemy  may  sue.  It  therefore  states  the  foreign-  country  or  place 
in  which  the  plaintiff  was  born  ;  that  he  was  born  and  continues 

1  [A  plea  in  abatement  should  exclude  left  in  service,  and  the  original  writ  and 
all  matter  which,  if  alleged  on  the  oppo-  declaration,  in  this,  that  in  said  original 
site  side  would  defeat  the  plea.  Therefore  writ  and  declaration,  between  the  words 
where  the  plea  is  founded  upon  defective  '  fourth  Tuesday  of  January,'  and  the 
service  of  the  process,  it  is  insufficient  if  it  words  '  then  and  there  to  answer,'  were 
alleges  that  no  summons  was  served  on  the  figures  '  1861,' while  in  said  pretended 
the  defendant,  unless  it  also  sets  forth  that  copy,  between  the  same  words,  were  the 
the  defendant  was  at  the  time  an  inhabi-  figures  '  I860,'  and  the  figures  '  186!,'  and 
tant  of  the  State.  Tweed  v.  Libbey,  37  any  words  indicating  the  same  thing  were 
Maine  (2  Heath),  49.  See  Bank  of" Rut-  entirely  omitted  in  said  pretended  copy; 
land  V.  Barker,  1  "Williams  ( Vermont),  which  figures,  so  omitted,  were  a  material 
293.J  [*See  Gould  v.  Smith,  30  Conn,  part  of  said  writ  and  declaration."  And 
88,  in  which  a  plea  in  abatement,  on  the  it  was  held  that  it  sufficiently  appeared 
ground  of  a  mateiial  variance  between  the  from  the  plea  that  the  variance  was  a  ma- 
copy  left  in  service  and  the  original,  al-  terial  one.  See  also  dissenting  opinion  in 
leged  that  "  there  was  and  is  a  material  the  same  by  Sanford,  J.] 
Tariance  between  said  pretended  copvj  so 


PART  IV.]  ABATEilENT.  19 

under  allegiance  to  its  sovereign,  of  parents  under  the  same  alle- 
giance, or  adherents  to  the  same  sovereign  ;  that  such  sovereign 
or  country  is  an  enemy  to  our  own  ;  and,  if  he  is  here,  that  he 
came  hither  or  remains,  without  a  safe-conduct  or  license  ;  ^  and 
that  he  has  been  ordered  out  of  the  country  by  the  President's 
proclamation.^  If  the  plaintiff  should  reply,  that  he  is  a  native 
citizen  and  not  an  alien,  concluding,  as  seems  proper  in  such  cases, 
to  the  country,  the  defendant  has  the  affirmative,  and  must  prove 
that  the  plaintiff  is  an  alien,  as  alleged  in  the  plea.^  If  the  plain- 
tiff should  reply  that  he  was  duly  naturalized,  the  proper  evidence 
of  this  is  the  record  of  the  court  in  which  it  was  done.  If  the 
judgment  is  entered  of  record  in  legal  form,  it  closes  all  inquiry, 
it  being  like  other  judgments,  complete  evidence  of  its  own  valid- 
ity.* These  proceedings  in  naturalization  have  been  treated  with 
great  indulgence,  and  the  most  liberal  intendments  made  in  their 
favor."  The  oath  of  allegiance  appearing  to  have  been  duly  taken, 
it  has  been  held,  that  no  order  of  the  court,  that  he  be  admitted 
to  the  rights  of  a  citizen  was  necessary,  the  record  of  the  oath 
amounting  to  a  judgment  of  the  court  for  his  admission  to  those 
rights.^  And  such  record  is  held  conclusive  evidence  that  all  the 
previous  legal  requisites  were  complied  with.'^ 

§  20.  If  the  plea  is  founded  on  a  defective  or  improper  service 
q/"<Aej»roccs«,  as,  for  example,  that  it  was  served  on  Sunday,  the 
day  will  be  taken  notice  of  by  the  court,  and  any  almanac  may  be 
referred  to.  So,  if  the  service  is  made  on  any  other  day  on  which, 
by  public  statilte  no  service  can  be  made,  the  like  rule  prevails  ; 
and  this,  whether  the  day  is  fixed  by  the  statute,  or  by  proclama 
tion  by  the  Executive.^ 

§  21.   If  the  defendant,  in  pleading  a  misnomer,  allege  that  he 

»  Casscrcs  v.  Bell,  8  T.  R  166;  "Wells        '  Campbell  v.  Gordon,  6  Cranch,  176. 
V.  Williams,  I  Ld.  Rayra.  282;  1   Chitty         '^  Stark  v.  The  Che-apeake  Ins.  Co.  7 

on  ri.  2U;  Stephen  on  PI.  67.     License  Cranch,  420;  Ritchie  y.  Putnam,  13  Wend 

and    safe-conduct   arc   implied,    until    the  524 ;  Spratt  v.  Spratt,  4  Pet.  293. 
President  fjiall  think  proper  to  order  the         *  Ante,  Vol.  1,  §§  h,  6.     [In  an  action 

party,  cither  by  name  or  character  out  of  on  a  joint  contract,  want  of  service  on  co- 

the  United  States.     10  Johns.  72.  defendants   cannot    be   pleaded   in   abate- 

-  Stat.  United  States,  July  6.  1798  (ch.  mcnt.     Ilarker  v.  Brink,  4  Zabr.  (N.  J.) 

75);  Clarke  i'.  Morey,  10  Johns.  69,  72;  333.     See   Sawtelle  i-.  Jewell,  34   Maine, 

Bagwell  V.  Babe,  1  U'and.  272;  Russell  v.  (4  Red.)  543;  and  Bonzey  v.  Redman,  40 

Skipwith,  6  Binn.  241.  Maine,  336;  and  the  plea  is  defective  un- 

8  Jackson  on  Pleading  in  Real  Actions,  less  it  excludes  all  matter  which,  if   al- 

pp.  62,  65  ;  Smith  v.  Dovers,  2  Doug.  428.  le;;ed  in  the  replication  and  proved,  would 

*  Spratt  V.  Spratt,  4  Pet.  393,  403.  avoid    the    pica.      Tweed   i;.   Lil»bey    -37 

^^  Priest  V.  Cummings,   16  Wend.  617,  Maine  (2  Heath),  49.] 


20  LAW   OF  EVIDENCE.  [PART  IV. 

was  laptized  by  such  a  name,  though  the  averment  of  his  baptism 
was  unnecessaiy,  yet  he  is  bound  to  prove  the  allegation,  as  laid, 
by  producing  the  proper  evidence  of  his  baptism.^  This  may  be 
proved  by  production  of  the  register  of  his  baptism,  or  a  copy  of 
the  register  or  record,  duly  authenticated,  together  with  evidence 
of  his  identity  with  the  person  there  named.^  If  there  is  no  aver- 
ment of  the  fact  of  baptism,  the  name  may  bo  proved  by  any  other 
competent  evidence,  showing  that  he  bore  and  used  that  name.^ 

§  22.  In  criminal  cases,  it  is  a  good  objection  in  abatement  that 
twelve  of  the  grand  jury  did  not  concur  in  finding  the  bill ;  in 
which  case  the  fact  may  be  shown  by  the  testimony  of  tlie  grand 
jurors  themselves,  it  not  being  a  secret  of  State,  but  a  constitu- 
tional right  of  the  citizen.^ 

§  23.  In  real  actions,  non-tenure  is  classed  among  pleas  in  abate- 
ment because  it  partakes  of  the  character  of  dilatory  pleas  ;  though 
it  shows  that  the  tenant  is  not  liable  to  the  action  in  any  shape, 
inasmuch  as  he  does  not  hold  the  land.^  The  replication,  putting 
this  fact  in  issue,  alleges  that  the  tenant  "  was  tenant  as  of  free- 
hold of  the  premises,"  and  concludes  to  the  country.  Tenure 
may  be  proved  primd  facie  by  evidence  of  actual  possession. ^  It 
is  also  shown  by  proof  of  an  entry  with  claim  of  title ;  7  or,  by  a 
deed  of  conveyance  from  a  grantor  in  possession.^  If  a  disclaimer 
is  pleaded  in  abatement,  the  only  advantage  in  contesting  it  seems 
to  be  the  recovery  of  costs,  where  they  are  given  by  statute  to  the 
party  prevailing.  In  such  cases  the  only  proper  replication  is  the 
same  in  form  as  to  the  plea  of  non-tenure,  as  before  stated.^ 

\^pte,  Vol.  1,  §  60;  Weleker  v.  Le  plea  is  this  :  "And  the  said  T.  comes  and 

Felletier,  1  Campb.  479.  defends  his  right,  when,  &c.,  and  says,  that 

^  Ante,  Vol.  1,  §§  484,  493.  he  cannot  render  to  the  said  D.  the  tene- 

»  Holman  v.  Walden,  Salk.  6.     [Where  ments  aforesaid   with  the  appurtenances, 

the  name  of  the  plaintiff  is  changed  pend-  because,  he  says,  that  he  is  not,  and  was 

ing  the  suit,  the  suit  is  not  thereby  abated,  not  on  the  day  of  the  purchase  of  the 

Town  of  Ottawa  v.  La  Salle  County,  11  original  writ  in  this  action,  nor  at  any  time 

111.  654.]  afterwards,  tenant  of  the  said  tenements  as 

*  Low  s  case,  4  Greenl.  439.     [*  An  ir-  of  freehold  ;  and  this  he  is  ready  to  veriiy. 

regularity  in  empanelling  or  summoning  Wherefore  he  prays  judgment  of  the  writ 

agrandjurycan  be  taken  advantage  of  only  aforesaid,   and    that    the    same    may    be 

by  plea  in  abatement.     Brown  v.  State,  8  quashed ;  and  for  his  costs."     See  Jack- 

Eng.  (13  Ark.)  96.      A  plea  in  abatement  son  on   Plead,  in   Real  Actions,   p.   93; 

that   tlie  names   of  the  grand  jurors  by  Story's  Pleadings,  p.  41  ;  Steams  on  Real 

whom  the  indictment  was  found,  do  no"t  Actions,  App.  No.  49. 

appear  by  any  list  prepared  by  the  county  6  Newhall  v.  Wheeler,  7  Mass.  189,  199. 

court  of  persons  adjudged  by  said  court,  ">  1  Mass.  484,  per  Sewall,  J. ;  Proprie- 

quahfied  to  serve  as  jurors,  does  not  con-  tors    Kennebec   Purchase   v.  Springer,  4 

trovert  the  fact  that  the  grand  jury  was  Mass.  416 ;  Higbee  v.  Rice,  5  Mass.  344, 

constituted  according  to  law,  and  is  bad  on  352. 

demurrer.     Sayle  v.  State,  8  Texas,  120.]  8  pi^ge  v.  Tyler,  4  Mass.  ^41  ;  Knox  v. 

_   6  Saund.  44,  n.  (4) ;  Jackson  on  Plead.  Jenks,  7  Mass.  488. 

m  Real  Actions,  p.  91.    The  form  of  the  »  Jackson's  Plead,  pp.  100,  101.    Tho 


PART  IV.]  ABATEMENT.  21 

§  24.  The  non-joinder  of  proper  parties  is  also  pleadable  in 
abatement.  If  the  defendant  plead  that  he  made  the  promise 
jointly  with  another,  the  plea  will  be  maintained  by  evidence  of  a 
promise  jointly  with  an  infant ;  ^  for  the  promise  of  an  infant  is  in 
general  voidable  only,  and  not  void  ;  ^  and  it  is  good  until  avoided 
by  himself.  If  he  has  avoided  the  promise,  this  fact  will  constitute 
a  good  replication,  and  must  be  proved  by  the  plaintiff.  Where 
the  plea  was,  that  several  persons  named  in  the  plea,  being  the 
assigns  of  H.,  a  bankrupt,  ought  to  have  been  joined  as  co-defend- 
ants, it  was  held  that  proof  of  their  having  acted  as  assignees  was 
not  sufficient,  and  that  nothing  less  than  proof  of  the  assignment 
itself  would  satisfy  the  allegation.^  And  if,  on  the  face  of  the  as- 
signment, it  should  appear  that  there  were  other  assignees  not 
named  in  the  plea,  this  would  falsify  the  plea.*  If,  upon  the  plea 
of  the  non-joinder  of  other  partners  as  defendants,  it  is  proved 
that  though  the  contract  was  made  in  the  name  of  the  firm,  it  was 
"made  by  the  agency  of  the  defendant  alone,  and  for  his  own  use, 
and  the  proceeds  were  actually  so  applied  by  him  in  fraud  of  his 
partners,  the  plea  will  not  be  maintained.^ 

§  25.    In  cases  of  partnership,  if  one  be  sued  alone  and  plead 

form  of  a  general  disclaimer,  in  abatement,  '  Fisher  v.  Jewett,  1  Berton's  R.  35.  In 

is  as  follows  :  "  And  the  said  T.  comes  and  this  case,  upon  an  able  review  of  the  au- 

dcfends  his  riglit  when,  &c.,  and  says  that  thorities,  it  was  held,  by  the  learned  Court 

he  has  nothin<,',  nor  dues  he  claim  to  have  of  the  Province  of  New  Brunswicic,  that  aa 

anytliing  in  the  said  demanded  premises,  infant's  negotiable  note  was  voidable  only, 

nor  did  he  have,  nor  claim  to  have,  anv-  and   not  void.      See  also  2  Kent,  Comra. 

thing  therein  on  the  day  of  the  purchase  234  -  236  ;    4  Cruise's  Dig.  14,  note  (2), 

of  the  original  writ  in  this  action,  nor  at  Greenleafs  ed.) 

any  time  afterwards ;  but  he  wholly  dis-  '  Pasmore  v.  Bousfield,  1  Stark.  R.  296, 

claims  to  have  anything  in  the  said  prem-  per  Ld.  Ellenborough. 

ises  ;  and  this  he  is  ready  to  verify  ;  where-  *  Ibid. 

fore  he  prays  judgment  of  the  writ  afure-  ^  Hudson  v.  Robinson,  4  M.  &  S.  475. 
said,  and  that  the  same  may  be  quashed ;  So  if  one  partner  was  an  infant,  and  the 
and  for  his  costs."  lb.  p.  luO.  bill  was  accepted  by  the  other,  in  the  name 
1  Gibbs  V.  Merrill,  3  Taunt.  307  ;  Wood-  of  the  firm,  it  has  been  held,  that  he  was 
ward  V.  Newhall,  1  Pick.  500.  The  form  chargeable  in  a  special  count,  as  upon  an 
of  such  plea  may  be  thus  :  "  And  the  said  acceptance  by  himself  in  the  name  of  the 
D.  comes,  &c ,  when,  &c.,  and  prays  judg-  firm.  Burgess  v.  Merrill,  4  Taunt.  468. 
ment  of  the  writ  and  declaration  aforesaid,  See  further  as  to  abatement,  Infra,  tit. 
because,  he  says,  that  the  said  several  Assumpsit,  §§  110,  1.30- 134.  [T lie  non- 
promises  in  said  declaration  mentioned,  joinder  of  a  co-tenant  as  plaintiff  in  an 
were  and  each  of  them  was  made  by  one  action  of  tort,  can  be  taken  advantage  of 

A.  B.  jointlif  with  the  said  D. ;  which  A.  only  by   plea  in   abatement.      Phillips  v. 

B.  is  still  alive,  to  wit,  at ,  and  this  he  Cummings,  11  Cush.  469.   See  also  Putney 

is  ready  to  verify.  Wherefore,  because  the  v.  Lapham,  10  lb.  234.  [*  In  suits  ex 
said  a!  B.  is  not  named  in  said  writ  and  rfc//cto,  the  objection  of  non-joinder  of  plain- 
declaration,  the  said  D.  prays  judgment  of  tiff  should  be  pleaded  in  abatement  to  de- 
Baid  writ  and  declaration,  and  that  the  feat  the  action.  Upon  trial,  if  not  so 
•ame  may  be  quashed."  Story's  PI.  35  ;  pleaded,  the  objection  can  only  avail  in 
•  Wentw.  PI.  17;  1  Chitty's  Precedents,  apportioning  or  severing  the  damages. 
p.  197  ;  Gould  v.  Lasburv,  1  C.  M.  &  R.  Briggs  v.  Taylor,  35  Vt.  66.  and  1  Chitty 
254  ;  Gale  v.  Capeni,  I  Ad.  &  El.  102.  on  Pleading,  7 5. J 


22  LAW   OF  EVIDENCE.  [PART  IV. 

this  plea,  proof  of  the  existence  of  secret  partners  will  not  support 
it,  unless  it  also  appears  that  the  plaintiff  had  knowledge  of  the 
fact  at  the  time  of  the  contract.^  If  he  subsequently  discovers  the 
existence  of  a  secret  partner,  he  may  join  him  or  not  in  the  action.^ 
But  if  the  partnership  is  ostensible  and  public,  and  one  partner 
buys  goods  for  use  of  the  firm,  and  in  the  ordinary  course  of  the 
partnership  business,  and  is  sued  alone  for  the  price  ;  proof  that 
the  goods  were  so  bought  and  applied,  will  support  the  plea  of  non- 
joinder, though  the  plaintiff  did  not  in  fact  know  of  the  existence 
of  the  partnership,  unless  there  are  circumstances  showing  that 
the  partner  dealt  in  his  own  narae.^  Any  acts  done  by  the  de- 
fendant in  these  cases,  such  as  writing  letters  in  his  own  name, 
and  the  like,  tending  to  show  that  he  treated  the  contract  as  his 
own  and  not  his  partner's,  may  be  given  in  evidence  by  the  plain- 
tiff to  disprove  the  plea.*  If  both  partners  reside  abroad,  and  one 
alone  being  found  in  this  country  is  sued  here,  and  pleads  the  non- 
joinder of  the  other  in  abatement,  his  foreign  domicile  and  resi- 
dence are  a  good  answer  to  the  plea.^  So,  the  bankruptcy  and 
discharge  of  the  other  are  made  by  statute''  a  good  replication. 

§  26.  Where  ihQ  pendency  of  a  prior  suit  is  pleaded  in  abate- 
ment, the  plea  must  be  proved  by  production  of  the  record,  or  by 
an  exemplification,  duly  authenticated.^  If  the  priority  is  doubt- 
ful, both  suits  being  commenced  on  the  same  day,  it  will  be  deter- 
mined by  priority  of  the  service  of  process.^  And  if  both  suits 
were  commenced  at  the  same  time,  the  pendency  of  each  abates 
the  other.^     But  the  principle  of  this  plea  is,  that  the  same  person 

■*  Baldney  v.  Ritchie,  1   Stark.  R.  338.  "^  Commonwealth  v.  Churchill,  5  Mass. 

But  if  the  suit  is  against  one  secret  partner,  174  ;  Parker  v.  Colcord,  2  N.  Hamp.  36. 

it  is  cause  of  abatement,  that  another  secret  ^  Morton   v.    Webb,  7    Verm.   R.   124. 

partner  is  not  joined.     Ela  v.  Rand,  4  N.  [*  A  prior  suit  will  not  be  abated  by  a 

Hamp.  307  ;  Story  on  Partn.  §  241  ;  Infra,  plea  that  another  suit,  for  the  same  cause  of 

tit.  Assumpsit,  §§  110,  130  -  134.  action  was  afterward  commenced.      Wood 

2  Ibid. ;  De  Mautort  v.  Saunders,  1  B.  v.  Lake,  13  Wis.  84.] 

&  Ad.  398;  .Bar  parte  Norfolk,  19  Ves.  45.5,  9  Beach   v    Norton,    8    Conn.    R.   71; 

458 ;  Mullet  v.  Hook,  1  M.  &  Malk.  88.  Hai^dit  v.  Holley,  3  Wend.  258.    One  form 

8  Alexander  v.  McGinn,  3  Watts,  220.  of  the  plea  of  prior  action  pcndinir,  is  as 

*  Murray  v.  Somerville,  2  Campb.  99,  follows  :  "  And  the  said  [defendant]  comes 

n. ;  Clark  v.  Holmes,  3  Johns.  149  ;  Hall  and  defends,  &c.,  when,  &c.,  and  says  that 

V.  Smith,  1  B.  &  C.  407 ;  Marsh  v.  Ward,  he  ought  not  to  be  compelled  to  answer  to 

Peake's  Cas.  130.  the  writ  and  declaration  of  the  plaintiff 

s  Guion  V.  McCulloch,  N.  Car.  Cas.  78.  aforesaid,  because  he  says,  that  the  plain- 
By  Stat.  3  &  4  W.  4,  c.  42,  §  8,  the  plea  tiff  heretofore,  to  wit,  at  the  [here  describe 
itself  is  bad,  unless  it  shows  that  the  other  the  court  and  <e?7n]  impleaded  the  said  [de- 
party  is  resident  within  the  jurisdiction,          fendant]  in   a  plea  of ,  and    for  the 

^  Stat.  3  &  4  W.  4,  c.  42,  §  9.     Qucere,  same   cause   in   the   declaration   aforesaid 

wnether  it  be  good  by"  the  common  law ;  mentioned ;  as  by  the  record  thereof,  in  the 

and  see  Infra,  tit.  Assumpsit,  §  135.  same  court  remaining,  appeal's ;  that  the 


pAtti  IV.] 


ABATEMENT. 


23 


shall  not  be  twice  vexed  for  the  same  cause  of  action.  If,  there- 
fore, the  first  action  was  against  one  of  two  joint  contractors,  and 
the  second  action  is  against  the  other,  the  pendency  of  the  former 
is  not  pleadable  in  abatement  of  the  latter.^ 

§  27.  In  all  cases  where  a  fact  is  pleaded  in  abatement,  and 
issue  is  taken  thereon,  if  it  be  found  for  the  plaintiff,  the  judg- 
ment is  peremptory  and  in  chief,  quod  recuperet?    The  plaintiff 


parties  in  the  said  former  suit  and  in  this 
■uit  arc  the  same  parties ;  and  that  the 
eaid  former  suit  is  still  pending  in  the  said 
court  last  mentioned ;  and  this  he  is  ready 
to  verity.  Wherefore  he  prays  judgment 
if  he  ought  to  be  compelled  to  answer  to 
the  writ  and  dcelaration  aforesaid,  and  that 
the  same  may  be  quashed,"  «&c.  Story's 
Pleadings,  p.  65  ;  1  Chitty's  Precedents,  p. 
201.  The  last  averment,  that  the  former 
suit  is  still  pending,  is  generally  inserted  ; 
but  it  has  been  held  to  be  unnecessary  ;  it 
being  sullieient  if  the  plaintifriias  counted 
in  the  first  action,  so  that  it  may  appear  of 
record  that  both  were  for  the  same  cause. 
See  Commonwealth  v.  Churchill,  5  M;is3. 
177,  178;  39  H.  6,  12,  pi.  16;  Parker  v. 
Colcord.  2  Hamp.  36 ;  Gould  on  Pleading, 
ch.  ."i,  §  125.  But  sec  Toland  v.  Ticlicnor, 
3  Kawle,  U.  320.  [*  In  Archew  i-.  Ward, 
9  Gratt.  622,  after  a  careful  review  of  the 
authorities,  it  is  held  necessary  in  a  plea  of 
a  former  suit  in  abatement,  to  aver  its  pen- 
dency at  the  time  of  filing  the  plea.  The 
same  is  also  helil  in  Clifford  v.  Cony,  1 
Mass.  4'JJ.]  [Where  two  suits,  one  by 
declaration  and  one  by  attachment,  were 
commenced  on  the  same  day  between  the 
same  parties  and  for  the  same  cau^c  of 
action,  the  court  will  presume,  the  record 
showing  nothing  to  the  contrary,  that  the 
suit  by  declaration  was  first  commenced. 
Wales  V.  Jones,  1  Manning  (Mich.)  254.] 
1  Henry  v.  Goldney,  10  Jur.  439.  [*  Be- 
cause a  second  suit  is  for  some  of  the  same 
things  sued  for  in  a  former  suit,  still  pend- 
ing, it  will  scarcely  do  to  say,  that  it  will 
abate  either  in  whole,  or  in  part,  the  other 
suit.  Ballon  v.  Ballon,  26  Vt.  673.]  {Lis 
pendms,  in  a  foreign  country,  is  not  a  good 
plea  in  abatement.  Lyman  v.  Brown,  2 
Curtis,  C.  C.  K.  559.  '  Nor  can  the  pen- 
dency of  a  prior  suit  in  another  State,  be- 
tween the  same  parties  and  for  the  same 
cause  of  action,  be  pleaded  in  abatement. 
McJilton  V.  Love,  13  111.  486.  See  also 
Hatch  V.  Spofford,  22  Conn.  485  ;  Hogg  v. 
Charlton,  25  Penn.  State  R.  (1  Casev,) 
200;  Drake  v.  Brander,  8  Texas,  351. 
[*  But  A  jurlfjment  rendered  in  one  State  by 
a  court  having  jurisdiction  of  the  suit,  will 
operate  aa  a  merger  of  the  cause  of  action 


and  be  a  bar  to  the  further  prosecution  or 
a  suit  in  another  State,  between  the  same 
parties  and  upon  the  same  claim.  Mc- 
Gilvray  v.  Avery,  30  Vt.  538.  Bank  of 
North  America  v.  Wheeler,  28  Conn.  433.] 
The  pendency  of  a  former  suit  cannot  be 
pleaded  in  abatement,  where  it  appears  that 
the  former  suit  is  ineflx;ctual  or  invalid. 
Quincbaug  Bank  v.  Tarbo.x,  20  Conn.  510; 
Rogers  v.  Iloskin,  15  Geo.  270 ;  Adams  v. 
Gardiner,  3  B.  .Monr.  197. 

[*  But  where  the  prior  suit  is  no  other- 
wise defective  tlian  m  the  mi.-joinder  of 
counts  in  the  declaration,  it  was  held  that 
the  writ  in  that  suit  could  have  been 
amended  by  striking  out  one  of  the  counts 
and  was  not  therefore  an  ineffective  one. 
Prosscr  v.  Chapman,  29  Conn.  515.] 

The  pendency  of  a  suit  in  a  State  court, 
between  the  same  parties  and  for  the  same 
cause  of  action,  may  be  pleaded  in  abate- 
ment in  the  federal  courts.  Earl  v.  Ray- 
mund,  4  McLean,  233.  Where  the  court 
is  not  under  the  same  sovereignty,  the  plea 
must  show  jurisdiction  of  the  former  suit. 
White  V.  Whitman,  1  Curtis,  C.  C.  K.  494. 
So  the  pendency  of  another  action  for  the 
same  cause  between  the  same  parties  in  a 
federal  court  having  jurisdiction,  is  a  good 
plea  in  abatement  in  tlie  State  courts  for 
the  same  district.  Smith  v.  Atlantic 
Mutual  Fire  Insurance  Co.,  2  Foster,  (N. 
H.)  21. 

Where  the  two  suits  are  in  their  nature 
different,  as  where  the  one  is  in  personam 
and  the  other  in  rem,  the  pendency  of  the 
one  cannot  be  pleaded  in  abatement  of  the 
other.  Harmer  v.  Bell,  22  Eng.  Law  & 
Eq.  R.  62.  See  also  Clark  v.  Wilder,  25 
Penn.  State  R.  (1  Casey,)  314.  The  pen- 
dency of  one  indictment  is  no  good  plea  in 
abatement  to  another  indictment  for  the 
same  cause  ;  but  when  either  indictment  is 
tried,  and  a  judgment  rendered  thereon, 
such  judgment  will  afford  a  good  plea  in 
bar  to  the  other  indictment.  Common- 
wealth t'.  Drew,  3  Cush.  282 ;  Button  t;. 
State,  5  Ind.  (Porter,)  5.33.] 

2  Eichom  v.  Le  Maitre,  2  Wils.  367 ; 
Bowen  v.  Shapcoft,  1  East,  542  ;  Dodge  v. 
Morse,  3  N.  Hamp.  232  ;  Jewitt  v.  Davia. 
6  N.  Hamp.  518. 


24  LAW  OF  EVroENCE,  [PART  IV. 

should  therefore  come  prepared  to  prove  his  damages  ;  otherwise 
he  will  recover  nominal  damages  onlj.^  If  the  issue  is  found  for 
the  defendant,  the  judgment  is  that  the  writ  and  declaration  be 
quashed.2 

1  Weleker  v.  Lo  Pelletier,  1    Campb.        '  1  Saunders's  PI.  &  Et.,  tit  AsAm 
479 ;  [Grood  V.  Leban,  8  Cosh.  301.]  mbht. 


PABT  IV.]  ACCORD  AND  SATISFACTION.  25 


ACCORD    AND    SATISFACTION. 

[•  5  28.  Facte  which  are  necessary  to  support  plea  of  accord  and  satisfaction  in  varioni 

cases. 
28  a.  Tho  facta  in  respect  to  the  accord  being  found,  their  effect  is  a  question  of 

law. 
29.  In  the  United  States  accord  and  satisfaction  may  be  proved  in  some  cases  under 

the  general  issue. 
SO   The  partus  to,  and  the  subject-matter  of,  an  accord  discussed. 
31.  Whether  an  accord,  with  a  lender  of  satis/action,  is  suflScient,  discussed.     Weight 

of  authority  in  tho  affirmative. 

82.  Defendant  pleadiny  payinent  and  acceptance  in  satisfaction  must  prove  both  facH 

when  plain tilf  traversed  acceptance  in  satisfaction. 

83.  Plea  of  accord  and  satisfaction  may  be  proved  by  the  lapse  of  time  and  acquies- 

cence.] 

§  28.  In  tho  plea  of  accord  and  satisfaction,  the  issue  is  upon 
tlie  deliveiy  or  acceptance  of  something,  in  satisfaction  of  the  debt 
or  damages  demanded.^  In  cases  of  contract  for  the  payment  of  a 
sura  of  money,  the  payment  of  a  less  sum  will  not  be  a  good  satis- 
faction ;  unless  it  was  either  paid  and  accepted  before  the  time 
when  it  was  to  have  been  paid,  or  at  a  different  place  from  that 
appointed  for  the  payment ;  but  in  the  case  of  a  simple  contract 
for  a  larger  sum,  a  negotiable  security  given  for  a  less  sum  may 
be  a  good  satisfaction.^  The  acceptance  of  a  collateral  thing  of 
value,  whenever  and  wherever  delivered,  is  a  good  satisfaction. 
And  if  the  action  is  for  general  and  unliquidated  damages,  the 
payment  and  acceptance  of  a  sum  of  money  as  a  satisfaction,  is  a 

1  The  plea  is,  that,  "  after  the  making  es,"  [or  damages,  or  debts  and  moneys,  aa 
of  the  promises  in  the  declaration  men-  the  action  miy  be,]  "  in  the  declaration  men- 
tioned" (in  oisumpsj/),  or,  "  after  commit-  tioned,  and  of  all  the  damajrcs  by  the 
ting  the  said  supposed  grievances  in  the  plaintiff  sustained  by  reason  of  the  non- 
declaration  mentioned"  (in  ca.s«),  or,  "fre«-  performance,"  [or  non-payment,  as  the 
passes,"  in  {trespass),  or,  "after  the  mak-  action  may  be,]  "thereof.  And  this,"  &c. 
ing  of  the  said  writing  oblii,'atory "  (in  The  usual  form  of  the  replication  is  by 
debt  or  covenant),  "  to  wit,  on  (&c.),  and  protesting  the  delivery  of  the  thing,  and 
before  (or  q/ler)  the  commencement  of  this  traversinfc  the  acceptance  of  it  in  satisfac- 
snit,  he,  the  said  (drfindant),  delivered  to  tion.  Chitty's  Precedents,  pp.  205,  444  a, 
the  plaintiff,  and  the  plaintiff  then  accept-  619;  Story  s  Pleadings,  pp.  120,  156; 
ed  and  received  of  and  from  the  said  (de-  Stephen  on  PI.  235,  236. 
fendant)  [here  describing  the  goods  or  thing  2  gibrce  v.  Tripp,  15  M.  &  W.  23, 
delivered]  of  great  value,  in"  full  satisflic-  [*  Hose  v.  Hall,  26  Conn.  392 ;  Warrc  • 
tion  and  discharge  of  the  several  promis-  v.  Skinner,  20  Conn.  559.] 


26  LAW   OF  EVIDENCE.  [PART  IV, 

good  bar.*  But  if  tne  action  is  upon  covenant,  the  satisfaction 
must  have  been  made  after  breach  ;  for  if  it  were  before  breach,  it 
is  not  good.2  And  where  a  duty  in  certain  accrues  by  deed,  tem- 
pore confectionis  scripti,  as,  by  an  obligation  to  pay  a  certain  sum 
of  money,  this  certain  duty  having  its  origin  and  essence  in  tho 
deed  alone,  the  obligation  it  seems  is  not  discharged  but  by  deed  ; 
and  therefore  a  plea  of  accord  and  satisfaction  of  the  bond  by  mat- 
ter en  pais  would  be  bad  ;  but  if  it  were  a  bond  with  condition, 
and  the  plea  in  such  a  case  had  been  in  discharge  of  the  sum  men- 
tioned in  the  condition  of  the  bond,  it  would  be  good.^ 

§  28  a.  The  facts,  in  respect  to  the  arrangement  or  accord  be- 
tween the  parties  being  ascertained,  their  effect  is  purely  a  ques- 
tion of  law,  and  is  not  to  be  submitted  to  the  jury.  Thus,  where 
A.  and  B.  having  mutual  causes  of  action  in  tort,  and  meeting  for 
the  purpose  of  adjusting  the  demands  of  B.  only,  it  was  insisted 
by  the  latter,  that  A.  should  pay  him  therefor  a  sum  of  money  and 
give  him  L  receipt  in  full  of  all  demands,  which  was  accordingly 
done,  but  nothing  was  said  about  A.'s  cause  of  action  ;  it  was  held 
that  this  was  a  good  accord  and  satisfaction  of  the  demand  of  A. 
against  B.^ 

§  29.  In  the  United  States,  an  accord  with  satisfaction  may  be 
given  in  evidence  under  the  general  issue  in  assumpsit,  and  in  ac- 
tions on  the  case  ;  but  in  debt,  covenant,  and  trespass,  it  must  be 
specially  pleaded.  In  England,  since  the  late  Kules,  it  must  be 
specially  pleaded  in  all  cases. ^ 

1  Fitch  V.  Sutton,  5  East,  230 ;  Stein-  »  Blake's  case,  6  Co.  43  ;  Neal  v.  Shef- 

man  v.  Magnus,   11   East,  390;   Co.  Lit.  field,   Yelv.    192;    Cro.  Jac.    254;    S.   C. 

2126;  a    Aber  i;.  Wane,  1  Stra.  426.    But  Story's     Plead.    157,    note;     Preston    v. 

this  case  t.    Cumber  v.  Wane  has  recently  Christmas,  2  Wils.  86  ;  Strang  v.  Holmes, 

been  limiteu,  in  Sibree  v.  Tripp,  15  M.  &  7  Cow.  224.     [*  Accord  and  satisfaction  is 

W.  23,  to  the  naked  case  of  the  accept-  a  good  plea  to  an  action  for  libel ;  and  an 

ance  of  a  less  sum  in  satisfaction   of  a  agreement  that  apologies  on  each  side  shall 

greater.     Thomas  v.  Heathorn,  2  B.  &  C.  appear  in  the  several  newspapers  of  the 

477;  Pinnel's  case,  5  Co.   117;   Smith  v.  plaintiff  and  the  defendant,  executed  by 

Brown,    3    Hawks,    580 ;    Wilkinson    v.  the  latter,  will  form  a  valid  plea  of  that 

Byers,  1   Ad.  &  El.  113,  per  Parke,  J.;  kind.     Boosey  v.  Wood,  3  H.  &  C.  484; 

Watkinson  v.  Inglesby,  5  Johns.  391,  392 ;  11  Jur.  N.  S.  181.] 

Seymour  v.  Minturn,  17  Johns.  169;  Bate-  *  Vedder  v.  Vedder,  1  Den.  257. 

man  v.  Daniels,  4  Blackf.  71.     But  pay-  6  Chitty  on  PI.  418,  426,  429,  432,  441 ; 

ment  and  acceptance  of  the  principal  sum.  Bird   v.  Randall,  3  Burr,  1353;    Chitty'a 

in    full,    without    interest,    is    sufficient.  Prec.  477, 478  ;  Weston  v.  Foster,  2  Bing. 

Johnston  v.  Brannan,  5  Johns.  271;  [See  N.  C.  693;  1   Stephen's  Nisi  Prius,  391. 

Donohue  v.  Woodbury,  6  Cush.  148]  Where  the  plaintiff,  in  an  action  of  slan- 

Kaye   v.   Waghorne,    1    Taunt.  428  ;  der,  agreed  to  waive  the  action,  in  consid- 

Snow  V.  Franklin,  Lutw.  108;    Smith  v.  eration  that  the  defendant  would  destroy 

Brown,  3  Hawks,  580 ;  Harper  v.  Hamp-  certain   writings    relative    to   the   charge, 

ton,  1  H.  &  J.  675 ;  [Batchelder  v.  Stur-  and  he  accordingly  destroyed  them  ;  this 

gis,  3  Cush.  203.]  was   held   admissible,   under  the  general 


PART  IV.]  ACCORD   AND   SATISFACTION.  27  ' 

§  30.  As  to  the  parties  to  an  accord^  proof  of  an  accord  and 
satisfaction  made  by  one  of  several  joint  obligors,  or  joint  trespass- 
ers, is  good  and  available  to  all.^  So,  if  it  is  made  to  one  of  sev- 
eral plaintiffs,  though  no  authority  appear  from  the  others  to  make 
the  agreement.^  If  tlie  action  is  for  an  act  done  by  the  defendant 
as  the  servant  of  another,  an  accord  and  satisfaction  by  the  latter 
is  a  good  defence.^  And  as  to  the  subject-matter^  it  is  not  neces- 
sary that  it  proceed  directly  from  the  defendant ;  the  obligation 
or  security  of  a  third  person  who  is  sui  juris,  is  sufficient,^  if  it  be 
accepted  in  satisfaction  of  the  whole  amount,  and  not  of  a  part 
only  ;^  though  it  may  be  of  a  less  amount  than  was  actually  due.^ 
It  is  well  settled  that  an  accord  alone,  not  executed,  is  no  bar  to 
an  action  for  a  pre-existing  demand.  And  the  rule  is  equally  clear, 
that  the  person  who  is  to  be  discharged  is  bound  to  do  the  act 
which  is  to  discharge  liim  ;    and  not  the  other  party.'' 

§  31.  Whetber  an  accord,  witli  a  tender  of  sati.sfuction,  is  suffi- 
cient without  acceptance,  is  a  point  upon  which  the  authorities  are 
not  agreed.  It  is,  however,  perfectly  clear,  that  a  mere  agreement 
to  accept  a  less  sum  in  composition  of  a  debt  is  not  binding,  and 
cannot  be  set  up  in  bar  of  an  action  upon  the  original  contract.^ 
Thus,  where  an  agreement  was  made  between  a  debtor  and  his 
creditors,  that  the  latter  should  accept  five  shillings  and  sixpence 
in  the  pound,  in  full  satisfaction  of  their  respective  debts,  which 
sum  was  tendered  and  refused  ;  it  was  held,  that  this  constituted 
no  bar  to  an  action  for  the  whole  debt,  for  it  was  without  consid- 
eration ;  though  it  was  admitted  that  had  the  debtor  assigned  his 
effects  to  a  trustee,  under  an  agreement  for  this  purpose,  it  would 
have  constituted  a  good  consideration,  and  would  have  been  valid.* 

issue,  as  an  evidence  of  accord  and  satis-  v.  Wcntworth,  5  N.  Hamp.  410;  Bullen  v. 

faction.     Lane  v.  Applcgate,  1   Stark.  K.  M'Gillicuddv,  2  Dana,  90. 

97.  "  Walker'  v.  Seaborne.   1    Taunt.   526  ; 

'  Strang  v.  Holmes,  7  Cow.  224;  Ruhlc  [Gabriel  v.  Dresser,  29  Eng.  Law  &  Eq. 

r.   Turner,   2  Hen.  &  M.  38.     If  several  K.  266  ] 

tort-feiusors  are  jointly  sued,  and  a  sum  of  ^  Steinman  r.  Ma;;nu9,  11    East,  .390; 

money  is  accepted  from  one  of  them,  and  Lewis  v.  Jones,  4  B.  &  C.  506,  513;  Heay 

the  action  is  thereupon  dropped,  this  may  v.  White,  1   C  &  M.  748;  Cranley  v.  Hil- 

be  shown  as  a  full  satisfaction  in  bar  of  a  larj-,  2  M.  &  S.  120. 

subsequent  action  against  the  others.    Du-  ''  Cranley  v.   Hillary,  2  M.  &  S.  120, 

fresnc  v.  Hutchinson,  3  Taunt.  117.  122. 

2  Wallace  v.  Kelsall,  7  M.  &  W.  264.  »  Cumber    v.   "Wane,   1    Stra.   425;    1 

But  if  tlie  payment  be  to  one  of  the  plain-  Smith's    Leading    Cases,    p.    146    (Am. 

tift's  for  his  part  only  of  the  damages,  it  is  cd.) ;  43   Law  Lib    249-263. 

no  bar  to  the  action.     Clark  i;.  Dinsmore,  *  Heatlicoto  v.   Crookshanks,   2   T.  R. 

S  N.  Hamp.  136.  24.     To   the   same   effect   arc   Tassall   v. 

2  Thurm;m  ».  Wild,  11  Ad.  &  El.  4.53.  Shane,  Cro.  FA.   193;  B:Uston  v.  Baxter, 

♦  Kcar>liike    v.  Mor-an,  5    T.   R.    513;  Ih.  .304;  Clark  i'.  Dinsmore,  5  N.  Hamp. 

Booth  V.  Smith,  3  Wend.  66;  W^entworth  136 :  Lynn  v.  Bruce,  2  H.  Bi.  317. 


28  LAW   OF  EVIDENCE.  [PART  IV. 

So,  where  the  agreement  was  to  receive  part  of  the  debt  in  money, 
and  the  residue  in  specific  articles,  no  tender  of  the  latter  being 
averred,  though  it  was  alleged  that  the  defendant  was  always 
ready  to  perform,  the  plea  was  held  bad,  the  accord  being  only 
executory.!  But  whether,  where  the  agreement  is  for  the  perform- 
ance of  some  collateral  act,  and  is  upon  sufficient  consideration,  a 
tender  of  performance  is  equivalent  to  a  satisfaction,  seems  still  to 
be  an  open  question  ;  though  the  weight  of  authority  is  in  the 
affirmative.  In  one  case,  which  was  very  fully  considered,  it  was 
laid  down  as  a  rule  warranted  by  the  authorities,  that  a  contract 
or  agreement  which  will  afford  a  complete  recompense  to  a  party 
for  an  original  demand  ought  to  be  received,  as  a  substitute  and 
satisfaction  for  such  demand,  and  is  suflficient  evidence  to  support 
a  plea  of  accord  and  satisfaction.^  Therefore,  where  the  holder  of 
a  promissory  note  agreed  in  writing  with  the  indorser,  to  receive 
payment  in  coals  at  a  stipulated  price,  and  they  were  tendered  ac- 
cordingly but  refused,  the  agreement  and  tender  were  held  to  be  a 
sufficient  accord  and  satisfaction  to  bar  an  action  on  the  note.^ 
So,  where  a  man's  creditors  agreed  to  take  a  composition  on  their 
respective  debts,  to  be  secured  partly  by  the  acceptances  of  a  third 
person  and  partly  by  his  own  notes,  and  to  execute  a  composition- 
deed  containing  a  clause  of  release  ;  it  was  held  by  Lord  EUenbor- 
ough,  that  an  action  for  the  original  debt  could  not  be  maintained 
by  a  creditor,  who  had  promised  to  come  in  under  the  agree- 
ment, to  whom  the  acceptances  and  notes  were  regularly  tendered, 
and  who  refused  to  execute  the  composition-deed  after  it  had  been 
executed  by  all  the  other  creditors  ;  the  learned  judge  remarking, 
that  a  party  should  not  be  permitted  to  say  there  is  no  satisfaction 
to  whom  satisfaction  has  been  tendered,  according  to  the  terms  of  the 
accord.^  But  it  has  since  been  held  in  this  country,  that  a  readi- 
ness to  perform  a  collateral  agreement  is  not  to  be  taken  for  a  per- 
formance, or  as  the  satisfaction  required  by  law.^ 

1  Rajrne  v.  Orton,  Cro.  El.  305 ;  James  ported  by  the  decision  in  Cartwright  v. 
V.  David,  5  T.  R.  141.  Cooke,  3  B.  &  Ad.  701.     See  also  Good 

2  Coit  V.  Houston,  3  Johns.  Cas.  249,  v.  Cheeseman,  2  B.  &  Ad.  328,  33.5.  Sed 
per  Thompson,  J.;  Case  v.  Barber,  T.  vid.  Bayley  v.  Homan,  3  Bing.  N.  COL'S, 
Kaym.  450 ;  1   Com.  Dig.  Accord,  B.  4.  per  Tindal,  C.  J. 

The  latter  case  of  Allen  v.  Hai-ris,  1  Ld.  ^  Coit  v.  Houston,  3  Johns.  Cas.  243. 

Raym.  122,  that  an  accord  upon  mutual  The  same  principle  seems  to  have  been 

})romises  is  not  binding,  because  no  action  conceded  by  Ashhurst  and  Grose,  JJ.,  iu 

ies   upon   mutual    promises,  admits    the  James  v.  David,  5  T.  R.  141. 

general   doctrine   of    the   text,  tliough  it  *  Bradley  v.   Gregory,   2   Campb.  383. 

differs   in   its   application.     The   same   is  And  see,  accordingly,  Evans  y.  Powis,  11 

true  of  Preston  v.  Christmas,  2  Wils.  86.  Jur.  1043. 

But  the  doctrine  in  the  text  is  fully  sup-  &  Russell  v,  Lytle,  6  Wend.  390.    Bu* 


PART  IV.] 


ACCORD  AND  SATISFACTION. 


29 


§  32.  If  the  defendant  pleads  payment  and  acceptance  of  a  sum 
of  money  in  satisfaction,  and  the  plaintiff  replies,  traversing  the 
acceptance  in  satisfaction,  this  pit^s  both  facts  in  issue;  and  the  de- 
fendant must  therefore  prove  the  payment,  as  well  as  the  accept- 
ance in  satisfaction. 1 

§  33.  The  plea  of  accord  and  satisfaction  may  often  be  proved 
hy  the  lapse  of  time  and  acquiescence  of  the  parties.  Thus,  it  has 
been  held,  in  an  action  upon  a  covenant  against  incumbrances, 
that  the  lapse  of  twenty  years  after  damages  sustained  by  the 
breach,  unless  rebutted  by  other  evidence,  was  sufficient  proof  of 
the  plea.2 


in  thi3  case  the  decision  of  the  same  court 
in  Colt  V.  Houston,  many  years  before, 
was  not  cited  or  adverted  to.  and  the  ques- 
tion was  decided  upon  the  earliest  authori- 
ties. Yet,  in  sevfnil  of  these,  the  reason 
why  an  accord  without  satisfaction  is  not 
binding  is  stated  to  be,  that  the  plaintiff 
has  no  remedy  upon  the  accord ;  thus 
tacitly  seeming  to  admit  that,  where  there 
is  such  remedy,  the  accord,  with  a  ten- 
der of  satisfaction,  is  sufBcicnt  1  Roll. 
Abr.  tit.  Accord,  pi.  II,  12,  13;  Allen  v. 
Harris,  1  Ld.  Raym.  122;  Brook.  Abr. 
tit.  Accord,  &c.,  pi.  6;  16  Ed.  4,  8,  pi.  6. 
So  in  Lynn  v.  Bruce,  2  H.  Bl.  .317.  Sec, 
however',  Hawley  v.  Footc,  19  Wend.  516, 
where  an  agreement  to  accept  a  collateral 
thing  in  satisfaction,  with  a  tender  and  re- 
fusal, was  held  not  a  good  bar.  [Tilton 
V.  Alcott,  16  Barb.  .598.]  [*In  Heam  v. 
Keihl,  38  Penn.  St.  147,  it  was  held  that  a 

{)lea  of  accord  and  satisfaction  must  al- 
ege  not  only  a  clear  engagement  or  ac- 
cord, but  that  it  was  executed  by  the  ac- 


ceptance of  the  matter  agreed  upon  In 
satisfaction.  Mere  readiness  to  perform 
the  accord,  or  a  tender  of  execution,  or 
even  part  performance,  and  readiness  to 
perform  the  rest,  is  not  enough.  And 
where  a  defendant  alleged  in  his  affidavit 
of  defence  an  agreement  to  receive  a 
smaller  sura  of  money  sooner  than  the 
debt  fell  due,  and  a  tender  to  the  counsel 
of  the  creditor,  without  alleging  an  ac- 
ceptunce  by  either  the  plaintiff  or  his 
counsel,  it  was  held  that  there  was  no  ex- 
ecution of  the  accord  and  satisfaction,  and 
that  the  defence  failed.  An  acceptance, 
in  discharge  of  a  debt,  of  an  agreement 
with  mutual  promises,  on  which  the  credi- 
tor has  a  legal  remedy  for  its  non-per- 
formance, is  a  satisfaction  of  the  debt,  al- 
though such  promises  are  not  performed. 
Goodrich  i-.  Stanley,  24  Conn.  613.  See 
full  discussion  of  this  question  in  Babcock 
V.  Hawkins,  23  Vt.  561.] 
1  Ridley  v.  Tindall,  7  Ad.  &  El.  134 
'  Jenkins  v.  Hopkias,  9  Pick.  543. 


80  LAW   OF  EVIDENCE.  [PART  IV. 


ACCOUNT. 


[*  §  34.  Action  of  account  rarely  used  in  United  Statca. 

35.  Between  whom  it  lies. 

36.  Necess.iry  pleadings  in  the  action. 

37.  Plaintiff  must  prove  his  material  averments.     What  are  such. 

38.  Evidence  necessary  to  sustain  plea  of  plene  computamt. 

39.  Effect  oi  judgment  quod  computet.^ 

§  34.  The  remedy  at  common  law,  by  the  action  of  account,  has 
fallen  into  disuse  in  most  of  the  United  States  ;  suits  by  bill  in 
chancery  or  by  action  of  assumpsit,  being  resorted  to  in  its  stead. 
It  is,  however,  a  legal  remedy  where  not  abolished  by  statute. 

§  35.  This  action  lies  at  common  law  between  merchants,  nam- 
ing them  such,  between  whom  there  was  privity  ;  "also  against  a 
guardian  in  socage  by  the  heir  ;  and  against  bailiffs  and  receivers.^ 
And  by  statutes  it  lies  between  joint-tenants  and  tenants  in  com- 
mon and  their  personal  representatives  ;  and  by  and  against  the 
executors  and  administrators  of  those  who  were  liable  to  this  ac- 
tion.2  But  it  does  not  lie  against  an  infant ;  nor  against  a  wrong- 
doer, or  any  other  person  where  no  privity  exists.^ 

§  36.  Where  the  action  is  against  one  as  receiver,  it  is  neces- 
sary to  set  forth  by  whose  hands  the  defendant  received  the  money ; 

1  Com.  Dig.  Accompt,  A.  B.  [It  does  been  shown  to  require  everything  growing 
not  lie  in  favor  of  one  partner  against  out  of  such  a  contract,  affecting  the  proper 
another  who  has  received  nothing,  and  settlement  and  division,  to  be  brought  into 
lias  no  account  to  render.  Spear  v.  New-  such  accounting,  it  was  decided  in  Cil- 
ell,  2  Paine,  C.  C.  267.]  [*  At  common  ley,  Adm'r,  v.  Tenny,  31  Vt.  401,  that  the 
law  the  action  of  account  would  only  lie  neglect  of  the  tenant  to  properly  cultivate 
between  two  merchants.  Appleby  v.  Brown,  the  crops,  whereby  they  were  injured,  and 
24  N.  y.  143.  thus  the  joint  profits  in  the  products  of  the 

2  13  Edw.  1,  c.  23;  25  Edw.  3,  c.  5  ;  31  farm  were  diminished,  was  proper  to  be 
Edw.  3,  c.  11  ;  4  &  5  Anne,  c.  16;  Stur-  adjusted  in  an  action  of  account.  —  But 
ton  v.  Richardson,  13  M.  &  W.  17.  [*  "  It  breaches  of  contract  on  either  part,  where- 
has  been  settled  by  repeated  decisions  in  by  the  making  of  profits  has  been  pre- 
this  State,  that  the  action  of  account  is  vented  merely,  we  think  need  not  necessa- 
the  proper  remedy  for  the  adjustment  of  rily  be  brought  into  the  account,  and  maj 
controversies  growing  out  of  the  common  be  sued  for  independently."  Poland,  C, 
mode  of  leasing  farms,  where  the  products  J.     La  Point  v.  Scott,  36  Vt.  609. 

and  profits  are  to  be  divided  between  land-         ^  Co.  Lit.  172  a;  Barker  v.  Whitaker, 
lord  and  tenant.    And  a  disposition  has     5  Watts,  474. 


PART  IV.] 


ACCOUNT. 


31 


but  where  he  is  charged  as  bailiff  it  is  not  necessary.^  It  seems  he 
may  be  charged  in  both  capacities,  in  the  same  action.^  But 
where  one  tenant  in  common  sues  his  co-tenant  in  account,  charg- 
ing him  as  bailiff  under  the  statute  of  Anne,  it  must  be  alleged  in 
the  declaration  and  of  course  be  proved,  that  he  has  received  more 
than  his  share  of  the  profits.^  And  the  receipt,  by  one  co-tenant, 
of  the  whole  profits  is  primd  facie  a  receipt  of  more  than  his  share, 
and  will  render  him  liable  to  account  to  his  companion  as  bailiff, 
Uiough,  on  takuig  the  account  it  may  turn  out  that  he  is  a  cred- 
itor.* The  pleas  in  bar  appropriate  to  this  action  are,  that  he 
never  was  bailiff,  or  guardian,  or  receiver ;  or  that  he  has  fully  ac- 
counted either  to  the  plaintiff  or  before  auditors ;  or  that  the 
money  was  delivered  to  him  for  a  specific  purpose,  which  has  been 
accomplished.^     Whatever  admits  the  defendant  once  liable  to  ac- 


1  Co.  Lit.  172  a;  Walker  v.  Holyday,  1 
Com.  R.  272;  Bull.  N.  P.  127;  Bishop  v. 
Eagle,  11  .Mod.  18G;  Jordan  r.  Wilkiiii,  2 
Wiish.  C.  C.  R.  482.  For,  wlicrc  the 
inoiiey  was  received  of  tiie  pluiiuitF,  the 
defendant  might  have  waged  his  law. 
Hodsden  v.  Harridge,  2  Saund.  63.  Nor 
is  it  neeessary,  wlieie  the  aetion  is  between 
merchants.  Moore  v.  Wilson,  2  Chipm. 
91. 

-  Wells  V.  Some,  Cro.  Car.  240;  1 
Roll.  Abr.  119,  pi.  10;  1  Com.  Dig.  Ac- 
coinpt,  E.  2.  The  declaration  against  a 
bailiff  is  as  follows  :  "  In  a  plea  of  account ; 
for  that  the  said  D.  was  baiiili'to  the  plain- 
tiff of  one  messuage,  with  the  appurte- 
nances in  — ^—  from   to   ,  and 

during  that  time  had  the  care  and  manage- 
ment thereof,  and  surtieient  power  to  im- 
prove and  demise  the  same,  and  to  collect 
and  receive  the  issues,  rents,  and  ])rofits  of 
the  said  premises  to  the  use  of  the  plain- 
tilf;  yet,  though  requested,  the  said  D.  hath 
never  rendered  to  the  plaintiff  his  reason- 
able account  of  said  moneys,  rents,  and 
profits,  nor  of  his  doings  in  the  premises, 
but  refuses  so  to  do."  The  form  of  charging 
one  as  receiver  is  thus :  "  For  that  the  said 
D  was  from to the  plaintifTs  re- 
ceiver, and  as  such  had  received  of  the  mon- 
eys of  the  plaintiff  by  the  hands  of  one 

E. dollars,  and  by  the  hands  of  oiyj 

F. dollars,  to  render  his  reasonable 

account  th-reof  on  demand.    Yet,"  &c.,  &c. 

^  Sturton  V.  Richardson,  1.3  M.  &  W.  17. 
Whether  a  special  request,  and  the  lapse  of 
reasonable  time  should  be  allegeil,  r/iuere. 
Ibid.  [  I'his  provision  of  the  statute  of  Anne 
(4  Antie,ch.  16,  §  27,  allowing  an  action  of 
account  where  one  tenant  in  common  has 
received  more  than  his  just  share),  applies 


.only  to  cases  where  one  tenant  in  common 
receives  the  money  or  something  else  from 
another  ])er<on  to  which  both  co-tenants 
arc  entitled,  simply  by  reason  of  their  being 
tenants  in  common,  and  in  proportion  to 
their  interest  as  such,  and  of  which  the  one 
receives  and  keeps  more  than  his  just  share 
according  to  that  proportion.  The  statute, 
therefore,  includes  all  cases  where  two 
are  tenants  of  land  lea,sed  to  a  third  party 
at  a  rent  pavable  to  each,  and  nhere  the 
one  receives  the  whole,  or  more  than  his  pro- 
portionate share  according  to  his  interest 
in  the  subject  of  the  tenancy.  There  is  no 
ditHculty  in  ascertiiining  the  share  of  each, 
and  determining  wlien  one  has  received 
more  than  his  just  share,  and  if  he  has,  he 
becomes  as  such  receiver,  in  that  case,  the 
bailiff  of  the  other,  and  must  account. 
But  when  we  seek  to  extend  the  meaning 
of  the  statute  beyond  the  ordinary  meaning 
of  its  words,  and  to  apply  it  to  cases  in 
which  one  has  enjoyed  more  of  the  benefit 
of  the  subject,  or  made  more  by  its  occu- 
pation than  the  other,  we  have  insuperable 
ditiiculties  to  encounter.  There  are  obvi- 
ously many  cases  in  which  a  tenant  in 
common  may  occupy  and  enjoy  the  land  or 
other  subject  of  tenancy  in  common  solely, 
and  have  all  the  advantage  to  be  derived 
from  it,  and  yet  it  would  be  most  unjust  to 
make  him  pay  anything.  And  there  are 
many  cases  where  profits  are  made  and  are 
actually  taken  by  one  co-tenant,  yet  it  is 
impossible  to  say  that  he  has  received  more 
than  comes  to  his  just  share.  Examples  of 
both  classes  of  cases  are  given.  See  Hen- 
derson V.  Eason,  9  Eng.  Law  &  Eq.  K.  3:iT 

*  Eason  i-.  Henderson,  12  Ad.  &  El.  98€ 
N.  S. ;   1.3  Jur.  150. 

*  I  Com.  Dig.  Accompt,  E.  3,  4,  5.     I 


32 


LAW   OF   EVIDENCE. 


[Piifll  IV. 


count,  such  as  payment  over  by  the  plaintifiTs  order,  etc.,  though 
it  goes  in  discharge,  should  be  pleaded  before  the  auditors  and  not 
in  bar  of  the  action  ;  excepting  the  pleas  of  release,  plene  compvr 
tavit,  and  the  statute  of  limitations.^ 

§  37.  In  this  case,  as  in  other  cases,  the  evidence  on  the  part  of 
the  plaintiff  must  support  the  material  averments  in  the  declara- 
tion.^  There  must  be  evidence  of  a  privity,  either  by  contract, 
express  or  implied,^  or  by  law  ;  and  if  the  defendant  is  charged  as 
bailiff,  or  guardian,  or  receiver,  or  tenant  in  common,  or  joint- 
tenant,  he  must  be  proved  to  have  acted  in  the  specific  character 
charged  ;  for  the  measure  of  their  liabiHty  is  different ;  tenants  in 
common  and  joint-tenants  being  answerable  for  what  they  have  ac- 
tually received,  without  deducting  costs  and  expenses  ;  receivers 
being  charged  in  the  same  manner,  but  allowed  costs  and  expenses 
in  special  cases  in  favor  of  trade  ;  and  guardians  and  bailiffs  being 
held  to  account  for  what  they  might  with  proper  diligence  have 
received,  deducting  reasonable  costs  and  expenses.*    The  property 


these  cases,  the  form  of  pleading  is  :  "  That 
he  never  was  bailifFof  the  premises,  goods, 
and  chattels  aforesaid,  to  render  an  account 
thereof  to  the  said  plaintiff  in  manner  and 
form  (&c.) " ;  or,  "  that  he  never  was  re- 
ceiver of  the  moneys  of  the  phvintiff.  in 
manner  (&c.)";   or,  that,  after  the  time 

during  which  {&c.),  to  wit,  on  he 

fully  accounted  with  the  plaintiff  of  and 
concerning  the  said  premises,  rents,  (&c.) 
for  the  time  he  was  so  bailiff,  as  afore- 
said " ;  or,  "  of  and  concerning  the  moneys 
so  by  him  received,  as  aforesaid " ;  or, 
"ftdly  accounted  before  A.  and  B.,  audi- 
tors assigned  by  the  court  here  to  audit  the 
account  aforesaid,"  &c.  Story's  Plead- 
ings, 71,  72;  3  Chitty's  PI.  1197-1289. 
[*  There  being  no  general  issue  in  this 
action,  it  is  requisite  that  the  essential 
facts  should  be  definitely  stated,  that  the 
defendant  may  know  the  precise  grounds 
upon  which  he  is  called  to  render  an  ac- 
count, and  be  able  to  plead  specially  to  the 
cardinal  points  upon  which  the  account  is 
claimed.  See  Cearney  v.  Irving,  31  Vt. 
606,  and  cases  cited.  The  action  of  ac- 
count, at  common  law,  will  not  lie  upon  a 
mere  equitable  title  of  tenancy  in  common, 
or  joint  tenancy,  where  the  object  is  to  re- 
cover for  rents  and  profits.    lb.] 

1  1  Com.  Dig.  Accompt,  E.  6 ;  Godfrey 
V.  Saunders,  3  Wils.  94 ;  Bredin  v.  Divin, 
2  Watts,  1 5. 

*  An  I  O  U  is  evidence  of  an  account 
stated  between  the  parties.  Fessenmayer 
V.  Adcock,  16  M.  &  W.  449 


'  King  of  France  v.  Morris,  cited  3 
Yeates,  251 ;  Co.  Lit.  172  a. 

*  1  Selw.  N.  P.  1-3;  Co.  Lit.  172  a, 
Sargent  v.  Parsons,  12  Mass.  149;  Grif- 
fith V.  Willing,  3  Binn.  317;  Wheeler  v. 
Home,  Willes,  208 ;  Jordan  v.  Wilkins,  2 
Wash.  C.  C.  II.  485 ;  Stat.  4  &  5  Anne, 
c.  27 ;  Irvine  v.  HanHn,  10  S.  &  R.  221. 
[*  "  In  a  matter  of  account,  every  proper 
item  of  credit  on  one  side  is  presumed  to 
be  intended,  and  will,  therefore,  operate  as 
a  payment  upon  existing  debits  on  the 
other.  The  account  is  an  entirety.  The 
items  of  debt  and  credit  are  the  elements 
of  which  that  entirety  is  composed.  Credits 
on  one  side  are  applied  to  the  extinguish- 
ment of  debits  on  the  other,  as  payments 
intentionally  made  thereon,  and  not  as  the 
set-off  of  one  independent  debt  against  an 
other."  Where,  however,  services  are  ren- 
dered upon  a  special  promise  of  the  party 
requesting  them  to  pay  for  them  in  cash, 
and  the  latter  has  an  account  against  the 
person  rendering  the  service,  the  law  will 
not  apply  them  on  the  account.  Sanford, 
J.  Sanford  y.  Clark,  29  Conn.  457.  "When 
on!y  a  portion  of  the  account  has  been  ad- 
justed, the  defendant  is  not  bound  to  plead 
specially  as  to  that  portion  of  the  account 
that  he  has  accounted.  In  such  case,  as  an 
auditor  must  be  appointed  to  adjust  the 
residue  of  tne  account,  the  whole  may  prop- 
erly (TO  oefore  the  auditor,  and  the  defend- 
ant has  the  benefit  of  the  evidence,  so  far 
*s  it  shows  he  has  accounted."  Morgan 
.  Adams,  37  Vt.  237.] 


PART  rV.J  ACCOUNT.  38 

in  the  money  demanded  or  goods  bailed,  must  be  precisely  stated 
and  proved  as  laid,  it  being  a  material  allegation.  If,  therefore, 
the  declaration  is  for  the  money  of  the  plaintifif,  and  the  proof  is 
of  money  belonging  to  the  plaintifif  and  others  as  partners,  the  dec- 
laration is  not  supported.^  And  if  there  are  several  defendants, 
they  must  bo  proved  to  be  jointly  and  not  severally  liable.^  A 
special  demand  to  account  is  not  necessary  to  be  proved.^ 

§  38.  If  the  plea  is  that  the  defendant  accounted  before  two,  it 
will  be  supported  by  evidence,  that  he  accounted  before  one  of  them 
only  ;  for  the  accounting  is  the  substance.*  In  general,  to  support 
the  plea  of  plene  computavit,  it  is  necessary  for  the  defendant  to 
show  a  balance,  ascertained  and  agreed  upon.^  But  if  the  course 
of  dealing  is  such  as  to  call  for  daily  accounts  and  payments  by  the 
defendant,  as  where  the  demand  is  against  a  servant  for  the  pro 
ceeds  of  daily  petty  sales,  of  which  it  is  not  the  course  to  take 
written  vouchors,  it  will  be  presumed  that  the  defendant  has  ac- 
counted ;  and  the  burden  of  proof  will  lie  on  the  plaintifif  to  show 
that  this  ordinary  course  of  dealing  has  been  violated.^  If  the 
contract  was  upon  the  consignment  of  goods  to  the  defendant,  that 
he  should  account  for  the  sales  and  return  the  goods  which  should 
remain  unsold,  the  plea  of  plene  computavit  will  not  be  maintained 
by  evidence  of  having  accounted  for  the  sales,  unless  it  be  also 
proved  that  the  goods  unsold  have  been  returned.'^  This  plea,  and 
that  of  ue  unques  bailifif,  etc.,  may  be  pleaded  together  ;  and  the 
plea  does  not  in  that  case  admit  the  liability  of  the  defendant  to 
account.^ 

§  39.  After  a  Judgment  quod  computet,  and  a  reference  to  audi- 
tors, all  articles  of  account  between  the  parties  incurred  since  the 
commencement  of  the  suit,  are  to  be  included  by  the  auditors,  and 
the  whole  is  to  be  brought  down  to  the  time  when  they  make  an 
end  of  the  account.^     But  after  such  judgment,  rendered  upon 

1  Jordan  v.  Wilkins,  2  "Wash.  C  C.  E.  a  stated  account  {which  it  will   become 

♦82.  after  the  expiration  of  a  reasonable  time 

^  Whclen   v.  Watmough,  15  S.  &  R.  from    the    rendition    without    objection), 

158.  neither  the  debtor  nor  his  assignee  can 

'  Sturges  V.  Bush,  6  Day,  442.  assail  the  note  constituting  the  usurious 

*  Bull.  N.  P.  127.  item  when   the  same  is   brought  forward 

•  Baxter  v.  Hozier,  5  Bing.  N.  C.  288  ;  as  a  set  off  by  the  party  rendering  the  ac- 
[Closson  t;.  Means,  40  Maine,  3.37;  Mc-  count.  Bullard  v.  Ravnor,  30  N.  Y.  197.] 
Pherson  v.  McPherson,  11  Ired.  391  ;  Lee         «  Evans  i-.  Birch,  3  Campb.  10. 

V.  Abrams,  12  111.  111.]     [*  If  an  account  ^  Read  v.  Bertrand,  4  Wash.  556. 

into  which  a  usurious  item  enters  is  ren-  ^  Whelen   v.  Watmough,   15  S.   &  R. 

dered  to  a  debtor,  and  its  correctness  con-  158. 

ceded  by  him,  and  the  account  has  become  '  Robinson    v.  Bland,   2   Burr.    1086 
VOL.  II.                               8 


84  LAW   OF  EVIDENCE.  [PART  IV. 

confession  against  a  receiver,  if  the  auditors  certify  issues  to  be 
tried,  tlie  plaintiff,  upon  tlie  trial  of  such  issues,  cannot  give  evi- 
dence of  moneys  received  by  the  defendant  during  any  other  pe- 
riod than  that  described  in  the  declaration.^  The  judgment  qiiod 
computet,  however,  does  not  conclude  the  defendant  as  to  the  pre- 
cise sums  or  times  mentioned  in  the  declaration  ;  but  the  account 
is  to  be  taken  according  to  the  truth  of  the  matter,  without  regard 
to  the  verdict.2 

Couscher  v.  Toulam,  4  Wash.  442.  The  ^  Sweigart  v.  Lowmartcr,  14  S.  &  R. 
report  of  the  auditor  will  not  be  set  aside  200.  [Nothing  can  be  availed  of  before 
on  the  ground  of  error  in  the  account,  ex-  the  auditors  contrary  to  what  has  been  pre- 
cept on  very  clear  and  satisfactory  proof  viously  pleaded  and  found  by  the  verdict. 
of  the  errors  complained  of.  Stekraan's  Spear  ».  Newell,  2  Paine,  C.  C.  267  ;  Leo 
Appeal,  5  Barr.  413.  [*  There  can  be  no  i;.  Abrams,  12  111.  111], 
revision  of  the  merits  of  the  judgment  to  ^  Newbold  v.  Sims,  2  S.  &  R.  317  ;  Jamea 
account,  on  the  hearing  before  the  auditor,  v.  Brown,  I  DalL  337 ;  Sturges  v.  Bosh, 
or  on  the  hearing  upon  his  report.  Tortcr  5  Day,  452. 
r.  Wheeler,  37  Vt.  li.  281.] 


PART  IV.]  ADULTERY.  35 


ADULTERY. 

;•  S  40.  Lord  Stowell's  oxposition  of  the  nature  of  the  evidence  requisite  to  prove 
adultery. 

41.  Same  subject  further  discussed. 

42.  In  ecclesiastical  courts,  impression  and  belie/of  witness  admissible. 

43.  Criminal  intercourse,  once  shown,  presumed  to  continue  if  parties  live  under 

same  roof. 

44.  Circumstances  proving  adultery  of  husband  and  of  wife. 

45.  Rule  as  to  confession  of  party  same  in  principle  as  in  case  of  other  crimes. 

Confessions  rejected  when  there  is  danger  of  collusion. 

46.  Paramour  competent  witness.     His  confession  how  far  admissible. 

47.  Proof  of  acts  of  adultery  anterior  to  the  time  alleged  may  be  given  in  explar 

nation  of  like  acts  within  that  time. 

48.  Adultery  not  indictable  at  common  law,     Wliether  it  is  necessary,  to  consti- 

tute the  crime,  that  both  parties  be  married,  qucere.    Construction  of  statutes 
disabling  guilty  party  from  marrying. 

49.  Charge  of  adultery  not  made  out  without  proof  of  actual  marriage. 

50.  In  actions  against  wrongdoers,  sufficient  to  prove  the  marriage  according  to 

any  form  of  religion. 

51.  Defences  to  a  libel  for  divorce  and  to  an  action  for  criminal  conversation. 

52.  Recrimination  a  good  defence  to  a  libel  for  divorce,  but  not  to  an  action  for 

criminal  conversation. 

53.  Condonation  a  sufficient  answer  to  charge  of  adultery  in  libel ;  but  not  always 

to  a  recriminatory  plea.     Condonation  a  conditional  forgiveness. 

54.  Evidence  of  knowledge  of  crime,  and  of  matrimonial  connection  necessary  to 

prove  condonation. 

55.  What  may  be  shown  in  proof  of  damages  in  civil  action  for  adultery. 

56.  What  may  be  shown  in  mitigation  of  damages. 

57.  Letters  of  wife,  to  be  admitted  in  favor  of  husband,  must  have  been  written 

anterior  to  her  misconduct. 

58.  Plaintiff  cannot  in  first  instance  prove  good  character  of  wife.] 

§  40.  The  proof  of  this  crime  is  the  same,  whether  the  issue 
arises  in  au  indictment,  a  libel  for  divorce,  or  an  action  on  the 
case.^  The  nature  of  the  evidence  which  is  considered  sufficient  to 
establish   the  charge  before   any  tribunal,  has   been   clearly   ex- 

^  [It  is  thought  that  the  rule  of  proof  is  established  by  proof  beyond  a  reasonable 

different  where   the  issue  is  raised  on  an  doubt;  in  a  libel  for  divorce,  it  is  sufficient 

indictment,  and  where  it  arises  in  a  libel  if  there  be  a  preponderance  of  proof,  as  in 

for  divorce,  or  an  action  on  the  case.     In  civil  cases.] 
an  indictment,  the  act  of  adultery  must  be 


86  LAW   OF  EVIDENCE.  [I'ART  IV. 

pounded  by  Lord  Stowell,  and  is  best  stated  in  his  own  language. 
"  It  is  a  fundamental  rule,"  he  observes,  "  that  it  not  necessary  to 
prove  the  direct  fact  of  adultery  ;  because  if  it  were  otherwise, 
there  is  not  one  case  in  a  hundred  in  which  that  proof  would  be 
attainable  ;  it  is  very  rarely,  indeed,  that  the  parties  are  surprised 
in  the  direct  fact  of  adultery.  In  every  case,  almost,  the  fact  is 
inferred  from  circumstances,  that  lead  to  it  by  fair  inference  as  a 
necessary  conclusion  ;  and  unless  this  were  the  case,  and  unless 
this  were  so  held,  no  protection  whatever  could  be  given  to  marital 
rights.  What  are  the  circumstances  which  lead  to  such  a  conclu- 
sion cannot  be  laid  down  universally,  though  many  of  them,  of  a 
more  obvious  nature  and  of  more  frequent  occurrence,  are  to  be 
found  in  the  ancient  books  ;  at  the  same  time  it  is  impossible  to 
indicate  them  universally,  because  they  may  be  infinitely  diversi- 
fied by  the  situation  and  character  of  the  parties,  by  the  state  of 
general  manners,  and  by  many  other  incidental  circumstances,  ai> 
parently  slight  and  delicate  in  themselves,  but  which  may  have 
most  important  bearings  in  decisions  upon  the  particular  case. 
The  only  general  rule  that  can  be  laid  down  upon  the  subject  is, 
that  the  circumstances  must  be  such  as  would  lead  the  guarded 
discretion  of  a  reasonable  and  just  man  to  the  conclusion  ;  for  it  is 
not  to  lead  a  rash  and  intemperate  judgment  moving  upon  appear- 
ances, that  are  equally  capable  of  two  interpretations,  —  neither  is 
it  to  be  a  matter  of  artificial  reasoning,  judging  upon  such  things 
differently  from  what  would  strike  the  careful  and  cautious  con- 
sideration of  a  discreet  man.  The  facts  are  not  of  a  technical 
nature ;  they  are  facts  determinable  upon  common  grounds  of 
reason  ;  and  courts  of  justice  would  wander  very  much  from  their 
proper  ofiice  of  giving  protection  to  the  rights  of  mankind,  if  they 
let  themselves  loose  to  subtleties,  and  remote  and  artificial  reason- 
ings upon  such  subjects.  Upon  such  subjects  the  rational  and  the 
legal  interpretation  must  be  the  same."  ^ 

1  Loveden  v.  Loveden,  2  Hagg.  Con.  R.  with  the  former ;  and  a  count  in  trover  for 

2,  3.     [See  also  the  decision  of  Shaw,  C.  wearing  appaiel,  &c.,  may  also  be  added, 

J.,  in  Dunham  v.  Dunham,  6  Law  Re-  James  v.  Biddington,  6  C.  &  P.  589. 

porter,    141.]      The    husband's    remedy  The  declaration  for  seduction  may  be  as 

against  the  seducer  of  his  wife  may  be  in  follows  :  "  For  that  whereas  the  defendant, 

trespass,  or  by  an  action  on  the  case.     The  contriving  and   wrongfully  intending   to 

latter  is   preferable,  where   there  is   any  injure   the  plain tiflF,   and   to   deprive   him 

doubt  whether  the  fact  of  adultery  can  be  of  the  comfort,  society,  aid,  and  assistance 

proved,  and  there  is  a  ground  of  action  for  of  S.,  the  wife  of  the  plaintiff,  and  to  ali- 

enticing  away  or  harboring  the  wife  with-  enate  and  destroy  her  affection   for  him. 

out    the    husband's   consent ;    because    a     heretofore,  to  wit,  on  " [inserting  the 

count  for  the  latter  offence  may  be  joined  day  on  or  near  which  the  first  act  of  adul 


PART  IV.]  ADULTERY.  37 

§  41.  The  rule  has  been  elsewhere  more  briefly  stated  to  re- 
quire, tliat  there  be  such  proximate  circumstances  proved,  as  by 
former  decisions,  or  in  their  own  nature  and  tendency,  satisfy  the 
lesral  conviction  of  the  court  that  the  criminal  act  has  been  com- 
mitted.^  And  therefore  it  has  been  held,  that  general  cohabitation 
excluded  the  necessity  of  proof  of  particular  facts.^  Ordinarily,  it 
is  not  necessary  to  prove  the  fact  to  have  been  committed  at  any 
particular  or  certain  time  or  place.  It  will  be  sufficient,  if  the 
circumstances  are  such  as  to  lead  the  court,  travelling  with  every 
necessary  caution  to  this  conclusion,  which  it  has  often  drawn  be- 
tween persons  living  in  the  same  house,  tliough  not  seen  in  the 
same  bed  or  in  any  equivocal  situation.  It  will  neither  be  misled 
by  equivocal  appearances  on  the  one  hand,  nor  on  the  other,  will 
it  suffer  the  object  of  the  law  to  be  eluded  by  any  combination  of 
parties  to  keep  without  the  reach  of  direct  and  positive  proof.^ 
And  in  examining  the  proofs,  they  will  not  be  taken  insulated  and 
detached ;  but  the  whole  will  be  taken  together.*  Yet,  in  order 
to  infer  adultery  from  general  conduct,  it  seems  necessary  that  a 
suspicio  violenta  sliould  be  created.^  But  the  adulterous  disposition 
of  the  parties  being  gnce  established,  the  crime  may  be  inferred 
from  their  afterwards  being  discovered  together  in  a  bedchamber, 
under  circumstances  authorizing  sucli  inference.® 

§  42.  The  nature  of  tliis  crime  has  occasioned  a  slight  departure 
at  least  in  the  ecclesiastical  courts,  from  the  general  rule  of  evi- 
dence as  to  matters  of  opinion  ;  it  being  the  course  to  interrogate 
the  witnesses  who  speak  of  the  behavior  of  the  parties,  as  to  their 
impression  and  beliefs  whether  the  crime  has  been  committed  or 

tery  can  be  proved  to  have  been   com-  ^  Burgess  v.  Burgess,  2  Hagg.  Con.  R. 

mitted]    "  and  on   divers   other  days  and  226,  227  ;    ILimmcrton  r.  Haiiimcrton,  2 

times  after  that  day  and  before  the  com-  Hagg.  Eccl.  K.   14  ;  Kix  v.  Hix,  3  Hagg. 

mencemont  of  this  suit,  wrongfully  and  Eccl.  R.  74. 

wickedly  debauched  and  carnally  knew  the  *  Durant  v.  Durant,  1  Hagg.  Eccl.  R. 

said  S.,  she  being  then  and  ever  since  the  748. 

wife  of  the  plaintiff;  by  means  whereof  the  ^  Such  seems  to  have  been  the  view  of 
affection  of  the  said  S.  for  the  plaintiff  was  Ld.  Stowell  in  Loveden  v.  Loveden,  2 
wholly  alienated  and  destroyed  ;  and  by  Hagg.  Con.  R.  7,  8,  9,  16,  17  ;  and  in  Bur- 
reason  of  the  premises  the  plaintiff  has  gess  c.  Burgess,  lb.  227,  228. 
wholly  lost  the  comfort,  society,  aid,  and  ®  Soilleaux  r.  Soilleanx,  1  Hagg.  Con. 
assistance  of  his  said  wife,  which  during  R.  373  ;  Van  Epps  v.  Van  Epps,  6  Barb, 
all  the  time  aforesaid  he  otherwise  might  S.  C.  R.  320.  [*  When  the  facts  relied 
and  ought  to  have  had."  To  the  damage,  upon  are  equally  capable  of  two  interpre- 
&c.  tations,  one  of  which  is  consistent  with  tho 

^  Williams  v.  Williams,  1  Hagg.  Con.  defendant's  inno<'cnce,   they  will    not    be 

R.  299.      [Dunham  i>.  Dunham,  6   Law  sufficient  to  estalilish  guilt.     Ferguson  r. 

Reporter,  141.]  Ferguson,  3  Sandf.  .307,  and  see  Ivirby  v. 

*  Cadogan    v.    Cadogan,  2   Hagg.  Con.  The  State,  3  Humph.  289. J 
B.  4,  note ;  Rutton  v.  Rutton,  lb.  6,  Dote. 


88  LAW   OF   EVIDENCE.  [PART  IV. 

not.  For  it  is  said  that  in  cases  of  this  peculiar  character,  the 
court,  though  it  does  not  rely  on  the  opinions  of  the  witnesses,  yet 
has  a  right  to  know  their  impression  and  belief.^  On  the  other 
hand,  in  tlie  ecclesiastical  courts,  it  is  reluctantly  held  that  the 
testimony  of  one  witness  alone,  though  believed  to  be  true,  is  not 
legally  sufficient  to  establish  the  charge  of  adultery .^  But  in  the 
courts  of  common  law  in  America,  no  such  rule  is  known  to  have 
been  adopted,  even  iu  cases  of  an  ecclesiastical  nature.^ 

§  43.  Where  criminal  intercourse  is  once  shown,  it  must  be 
presumed,  if  the  parties  are  still  living  under  the  same  roof  that  it 
still  continues,  notwithstanding  those  who  dwell  under  the  same 
roof  are  not  prepared  to  depose  to  that  fact.^  The  circumstance, 
that  witnesses  hesitate  and  pause  about  drawing  that  conclusion, 
will  not  prevent  the  court,  representing  the  law,  from  drawing  the 
inference  to  which  the  proximate  acts  proved  unavoidably  lead." 

§  44.  Adultery  of  the  wife  may  be  proved  by  the  birth  of  a  child 
and  non-access  of  the  husband,  ho  being  out  of  the  realm ;  ^  and 
if  adultery  is  alleged  to  have  been  continued  for  many  years  and 
with  divers  particular  individuals,  it  is  sufficient  to  prove  a  few  of 
the  facts,  with  identity  of  her  person.'^  Ac^ultery  of  the  husband, 
on  the  other  hand,  may  be  proved  by  habits  of  adulterous  inter- 
course, and  by  the  birth,  maintenance,  and  acknowledgment  of  a 
child.^  A  married  man  going  into  a  known  brothel,  raises  a  sus- 
picion of  adultery,  to  be  rebutted  only  by  the  very  best  evidence.' 
His  going  there  and  remaining  alone  for  some  time  in  a  room  with 
a  common  prostitute,  is  sufficient  proof  of  the  crime. ^'^  The  cir- 
cumstance of  a  woman  going  to  such  a  place  with  a  man,  furnishes 
similar  proof  of  adultery.^i  The  venereal  disease,  long  after  mar- 
riage, is  primd  facie  evidence  of  this  crime.^^ 

1  Crewe  v.  Crewe,  3  Hagg.  Eccl.  R.  128.     Loveden  v.  Loveden,  2  Hagg.  Con.  R.  24 : 

2  Evans  v.  Evans,  1  Rob.  Eccl.  R.  165 ;  Kenrick  v.  Kenrick,  4  Hagg.  Eccl.  R.  1 14, 
Simmons  v.  Simmons,  11  Jur.  830.  124,  132.     [*  The  consorting  with  prosti- 

^  Ante,  Vol.  1,  §  260.  tutes   by  a  married   man  raises  the  pre- 

*  Turton  v.  Turton,  3  Hagg.  Eccl.  R.  sumption   of   adultery,    unless    explained 

350 ;  [Bishop  on  Marriage  and  Divorce,  §  and  rebutted  by  the  character  of  the  man ; 

442.]  and  when   character  is  relied  upon   as   a 

6  Elwes  V.  Elwes,  I  Hagg.  Con.  R.  278.  defence,  and  fails  in  that  respect,  the  pre- 

^  Kichardson   v.   Richardson,    1    Hagg.  sumption  is  increased.  Ciocci  v.  Ciocci,  26 

Eccl.  R.  6.     [*  In  a  libel  for  divorce  the  Eng.  Law  &  Eq.  R.  604.] 

husband   is   not  a  competent   witness   to  i'^  Astley  v.  Astley,   1    Hagg.  Eccl.  R. 

prove   non-access.     Corson  v.  Corson,  44  719. 

N.  H.  587 ;  SQQpost,  §  151.]  n  Eliot  v.  Eliot,  cited  1   Hagg.  Con.  R. 

^  Ibid.  302  ;  Williams  v.  Williams,  lb.  30. 

•*  D'Aguilar  V.  D'Aguilar,  1  Hagg.  Eccl.  ^^  Durant  v.  Durant,  1  Hagg   Eccl,  R. 

R.  777,  note.  767 ;  [Bishop  on  Marriage  and   Divorce^ 

»  Astley  V.  Astley,  1  Hagg.  Eccl.  R.  720  ;  §  427  e<  seq.] 


PART  IV.]  ADULTERY.  39 

§  45.  As  to  proof  by  the  confession  of  the  party,  no  difference 
of  principle  is  perceived  between  this  crime  and  any  other.  It 
has  already  been  shown  that  a  deliberate  and  voluntary  confession  of 
guilt  is  among  the  most  weighty  and  effectual  proofs  in  the  law.i 
Where  the  consequences  of  the  confession  are  altogether  against 
the  party  confessing,  there  is  no  difficulty  in  taking  it  as  indubita- 
ble truth.  But  where  these  consequences  are  more  than  counter- 
balanced by  incidental  advantages,  it  is  plain  that  they  ought  to  be 
rejected.  In  suits  between  husband  and  wife,  where  the  princi^pal 
object  is  separation,  these  countervailing  advantages  are  obvious, 
and  the  danger  of  collusion  between  the  parties  is  great.  This 
species  of  evidence,  therefore,  though  not  inadmissible,  is  regarded 
in  such  cases  with  great  distrust,  and  is  on  all  occasions  to  be  most 
accurately  weighed.^  And  it  has  been  held,  as  the  more  rational 
doctrine,  that  confession,  proved  to  the  satisfaction  of  the  court,  to 
be  perfectly  free  from  all  suspicion  of  a  collusive  purpose,  though 
it  may  be  sufficient  to  found  a  decree  of  divorce  a  mensd  et  tJioro,  is 
not  sufficient  to  authorize  a  divorce  from  the  bonds  of  matrimony, 
so  as  to  enable  a  party  to  fly  to  other  connections.^  It  is  never 
admitted  alone  for  this  purpose;*  nor  must  it  be  ambiguous.^ 
But  it  need  not  refer  to  any  particular  time  or  place  ;  it  will  be 
applied  to  all  times  and  places,  at  which  it  appears  probable  from 
the  evidence,  that  the  fact  may  have  been  committed.^  And  it  is 
admissible,  when  made  under  apprehension  of  death,  though  it  be 
afterwards  retracted.'  Where,  in  cross  libels  for  divorce  a  vinculo 
for  adultery,  each  respondent  pleaded  in  recrimination  of  the 
other,  it  has  been  held,  that  these  pleas  could  not  be  received  as 
mutual  admissions  of  the  facts  articulated  in  the  libels.^  But  the 
record  of  the  conviction  of  the  respondent,  upon  a  previous  indict- 

1  Ante,  Vol.  1,  §  214-219  ;  Mortimer  v.  Belts,  1  Johns.  Ch.  197  ;  Baxter  v.  Baxter, 

Mortimer,  2  Hagg.  Con.  R.  315  ;  [Bishop  1  Mass.  346  ;  Holland  v.  Holland,  2  Mass. 

on     Marriage    and    Divorce,    ch.     xvi.J  1.54  ;  Doe  i.-.  Roc,  1  Johns.  Cas.  25.     But, 

[*  Williams  v.  Williams,  33  L.  J.   Mat.  where   the   whole  evidence  was   such   aa 

Cas.  8  1  utterly  to  exclude  all  suspicion  of  collu- 

^  Wdliams  v.  Williams,  1   Hagg.   Con.  sion,  and  to  establish  the  contrary,  a  di- 

R.  304.     [*  On  an  indictment  for  adultery,  vorce  has   been  decreed  upon   confession 

the  crime  may  be  proved  by  the  direct  con-  alone.     Vance  v.  Vance,  8    Greenl.  132; 

fession  of  the  defendant,  corroborated  by  Owen  v.  Owen,  4  Hairg.  Eccl.  R.  261. 

evidnnc,  of  an  opportunity  to  commit  it,  ^  Williams  v.  Williams,  1  Hagg.  Con. 

and  of  his  subsequent  acts  making  it  prob-  R.  304.                                                n       -o 

able  that  he  did  commit  it.  Commonwealth  ^  Burgess  v.  Burgess,  2  Hagg.  Con.  K. 

V.  Tarr,  4  Allen,  315.]  227. 

8  Mortimer  r.  Mortimer,  2  Hagg.  Con.  '  Mortimer  v.  Mortimer,  2  Hagg.  Con. 

R.  316.  R.  317,  318. 

*  Scarle  v.  Price,  2  Hagg.  Con.  R.  1 89  ;  «  Turner  v.  Turner,  3  GreenL  398. 
Mortimer  v.  Mortimer,  lb.  316;  Betts  v. 


40  LAW   OF   EVIDENCE.  [PART  IV 

ment  for  that  offence,  has  been  held  sufficient  proof  of  the  libel, 
both  as  to  the  marriage  and  the  fact  of  adultery.^ 

§  46.  The  paramour  is  an  admissible  witness  ;  but  hQing  parti- 
ceps  criminis,  his  evidence  is  but  weak.^  His  confession  may  be 
used  in  evidence  against  her,  if  connected  with  some  act  of  con- 
fession of  her  own,  in  the  nature  of  a  joint  acknowledgment ;  but 
independently  and  alone,  it  is  inadmissible.^ 

§  47.  Where  the  fact  of  adultery  is  alleged  to  have  been  com- 
mitted within  a  limited  period  of  time,  it  is  not  necessary  that  the 
evidence  be  confined  to  that  period  ;  but  proof  of  acts  anterior 
to  the  time  alleged  may  be  adduced,  in  explanation  of  other  acts 
of  the  like  nature  within  that  period.  Thus,  where  the  statute  of 
limitations  was  pleaded,  the  plaintiff  was  permitted  to  begin  with 
proof  of  acts  of  adultery,  committed  more  than  six  years  preced- 
ing, as  explanatory  of  acts  of  indecent  familiarity  within  the  time 
alleged.'*  So,  where  one  act  of  adultery  was  proved  by  a  witness, 
whose  credibility  the  defendant  attempted  to  impeach,  evidence  of 
prior  acts  of  improper  familiarity  between  the  parties,  has  been 
held  admissible  to  corroborate  the  witness.^  But,  where  the 
charge  is  of  one  act  of  adultery  only,  in  a  single  count,  to  which 
evidence  has  been  given,  the  prosecutor  is  not  permitted  after- 
wards to  introduce  evidence  of  other  acts,  committed  at  different 
times  and  places.^ 

1  Anderson  v.  Anderson,  4  Greenl.  100  ;  criminal  conduct  of  either  party,  the  pat 
Randall  v.  Randall,  lb.  32G.     The  convic-  tics  may  be  jlermitted  to  testify  in  tneir 
tion  could  not  have  been  founded  upon  own  favor,  and  may  be  called  as  witnesses 
the  testimony  of  the  party  offering  it  in  by  the  opposite  party ;  but  they  shall  not 
evidence.  be  allowed  to  testify  as  to  private  conversa- 

2  Soilleaux  v.  Soilleaux,  1  Hajr)?.  Con.  tions  with  each  other.  Under  the  English 
R.  376 ;  Croft  v.  Croft,  2  Hagg.  Eccl,  R.  statute,  allowing  a  wife  to  testify  for  or 
318.  [*  In  Turney  v.  Turney,  4  Edw.  ch.  against  her  husband,  she  may,  in  an  action 
(N.  Y. )  .566,  the  court  refused  to  grant  a  against  the  husband  for  necessaries  sup- 
divorce  on  the  unsupported  testimony  of  plied  to  aid  her,  testify  to  her  own  adultery. 
two  prostitutes.  So,  in  Ginger  v.  Ginger,  Cooper  v.  Lloyd,  6  Com.  B.  Hep.  N.  S. 
34  L.  J.  Mat.  Cases,  9.  where  the  petition  51 9. J 

was  supported  only  by  the  testimony  of  the  *  Duke  of  Norfolk  v.  Germaine,  12  How- 
alleged  paramour,  a  woman  of  loose  char-  ell's  St.  Tr.  929,  94.5.  It  has,  however, 
acter.  See  Brown  v.  Brown,  5  Mass.  been  held,  that  the  proof  of  acts  within  the 
320.]  period  must  first  be  adduced.     Gardiner  v. 

8  Burgess  v.  Burgess,  2  Hagg.  Con.  R.  Madeira,  2  Yeates,  466. 

235,  note.      [In   an   action  on   the  case,  ^  Commonwealth  v.  Mcriam,  14  Pick, 

brought  by  a  husband  for  criminal  conver-  518.   [*  Commonwealth  v.  Lahey,  14  Gray, 

sation  with  his  wife,  the  latter,  after  a  di-  91.] 

vorce  from  the  bonds  of  matrimony,  is  a  ^  Sante    v.    Pricket,    1    Campb.    473  ; 

competent  witness  for  the  plaintiff,  to  prove  Downes  r.  Skrymsher,  1  Brownl.  233;  19 

the  charge  in  the  declaration.     Dickerman  H.  6,  47;  The  State  v.  Bates,  10  Conn, 

f.  Graves,  6  Cush.  308.     In  Massachusetts,  372;  [Commonwealth  v.  Horton,  2  Grav, 

by  statute  (Acts  of  1857,  c.  305),  in  all  354.]     [*  Commonwealth  v.  Thrasher,  1/ 

suits  for  divorce,  except  those  in  which  a  Gray,  453.] 
divorce  is  sought  on  the  ground  of  alleged 


PART  IV.]  ADULTERY.  41 ' 

§  48.  By  the  common  law,  the  simple  act  of  adultery  is  not 
punishable  by  indictment,  but  is  left  to  the  cognizance  of  the 
spiritual  courts  alone.  It  is  only  the  open  lewdness  or  public 
indecency  of  the  act  which  is  indictable.^  But  in  many  of  the 
United  States,  it  is  now  made  indictable  by  statutes.  Whether,  to 
constitute  this  crime,  it  is  necessary  that  both  the  guilty  parties 
be  married  persons,  is  a  point  not  perfectly  agreed  by  authorities;* 
but  the  better  opinion  seems  to  be,  that  the  act  of  criminal  inter- 
course, where  only  one  of  the  parties  is  married  is  adultery  in 
that  one,  and  fornication  in  the  other.^  Some  of  the  statutes, 
upon  a  divorce  a  vinculo  for  adultery,  disable  the  guilty  party 
from  contracting  a  lawful  marriage  during  the  life  of  the  other  ; 
but  it  has  been  held,  tliat  a  second  marriage  does  not,  in  such 
case,  render  the  party  guilty  of  the  crime  of  adultery  ;  but  only 
exposes  to  a  prosecution  under  the  particular  provisions  of  the 
statute,  whatever  they  may  be.*  And  if  such  second  marriage  is 
had  in  another  State,  where  it  is  not  unlawful,  the  parties  may 
lawfully  cohabit  in  either  Statc.^ 

§  49.  Upon  every  charge  of  adultery,  whether  in  an  indictment 
or  a  civil  action,  the  case  for  the  prosecution  is  not  made  out 
witliout  evidence  of  the  marriage.  And  it  must  be  proof  of  an 
actual  marriage,  in  opposition  to  proof  by  cohabitation,  reputation, 
and  other  circumstances,  from  which  a  marriage  may  be  inferred, 
and  which,  in  these  cases,  are  held  insufficient ;  for  otherwise 
persons  might  be  charged  upon  pretended  marriages  set  up  for 
bad  purposes.*  "Whether  the  defendant  admission  of  the  mar- 
riage may  be  given  in  evidence  against  him  has  been  doubted  ; 
but  no  good  reason  has  been  given  to  distinguish  this  from  other 
cases  of  admission,  where,  as  wo  have  already  shown,*^  the  evi- 

1  4  Bl  Comm.64,  65  ;  Anderson  v.  The  *  Commonwealth  i--.  Putnam,  1  Pick. 
Commonwealth.  6  Rand.  6L'7 ;  The  State     136. 

I'.  Branson,  2  Bayley,  R.  149;  The  Com-  ^  Putnam  v.  Putnam,  8  Pick.  43.3. 

monwealth  v.  Isaaks,  5  Rand.  634.  ^  Morris    v.   Miller,  4    Burr.  20.i9,  ex- 

2  The  State  i;.  Pierce,  2  Blackf.  318;  pounded  in  1  Dou^.  174.  In  a  libel  for 
Respulilica  v.  Roberts,  2  Dall.  124;  1  divorce,  the  court  will  require  proof  of  the 
Yeates,  6.  m.arria^e,  even  though  the  party  accused 

3  Bouvicr's  Law  Diet.  verb.  Adultery,  makes  default  of  ap[K!arance.  Willi.ims  v. 
Hull  V.  Hull,  2  Strobh.  Eq.  174.  In  The  Williams,  3  Grcenl.  135.  In  Massachusetts, 
St.ito  V.  Wallivcc,  9  N.  Hamp.  515,  it  was  in  a  libel  for  divorce,  the  marriage  may  bo 
held,  that  adultery  was  committed  when-  proved  by  any  circumstantial  evidence, 
ever  there  was  unlawful  intercourse,  from  competent  to  prove  it  in  civil  causes  in  gen- 
which  spurious  issue  might  arise ;  and  that,  eral.     Stat.  1840,  ch.  84. 

therefore,  it  was  committed  by  an  unmar-  ^  Ante,  vol.   1,  §  209.      [Cook  v.   The 

ried  man,  by  illicit  connection  with  a  mar-  State,  1 1  Geo.  53 ;  Cameron  v.  The  State, 

ricd  woman.     [See  also  Commonwealth  v.  14  Ala.  546.]     In  an  indictment  for  aiul- 

Call,  21  Pick.  509. 1  tery,  where  the  defendant  was  married  in  a 


'  42  LAW   OP  EVIDENCE.  [PART  IV. 

dence  may  be  received,  though  it  may  not  amount  to  sufficient 
proof  of  the  fact.  Thus,  in  a  civil  action  for  adultery,  where  the 
defendant,  being  asked  where  the  plaintiff's  wife  was,  replied,  that 
she  was  in  the  next  room,  this  was  held  insufficient  to  prove  a 
marriage,  for  it  amounted  only  to  an  admission  that  she  was 
reputed  to  be  his  wife.^  But  any  recognition  of  a  person  standing 
in  a  given  relation  to  others  is  primd  facie  evidence,  against  Hie 
person  making  such  recognition,  that  such  relation  exists  ;  2  and 
if  the  defendant  has  seriously  and  solemnly  admitted  the  marriage, 
it  will  be  received  as  sufficient  proof  of  the  fact.^  Thus,  where 
the  defendant  deliberately  declared  that  he  knew  that  the  female 
was  married  to  the  plaintiff,  and  that  with  full  knowledge  of  that 
fact  he  had  seduced  and  debauched  her,  this  was  held  sufficient 
proof  of  the  marriage.* 

§  50.  In  indictments,  and  actions  for  criminal  conversation,  as 
the  prosecution  is  against  a  wrongdoer,  and  not  a  claim  of  right, 
it  is  sufficient  to  prove  the  marriage  according  to  any  form  of  re- 
ligion, as  Jews,  Quakers,  and  the  like.^  The  evidence  on  this 
head  will  be  treated  hereafter,  under  the  appropriate  title.  But 
in  whatever  mode  the  marriage  was  celebrated  or  is  proved,  there 
must  be  satisfactory  proof  of  the  identity  of  the  parties. ^ 

§  51.  In  defence  of  a  libel  for  divorce^  or  of  an  action  for  criminal 
conversation,  it  may  be  shown  that  the  adultery  was  committed,  or 
the  act  of  apparent  criminality  was  done,  by  collusion  between  the 
parties,  for  the  purpose  of  obtaining  a  separation,  or  of  supporting 
an  action  at  law.  For  the  law  permits  no  such  co-operation,  and 
refuses  a  remedy  for  adultery  committed  with  such  intent.'  But 
the  non-appearance  of  the  wife,  and  a  judgment  by  default  against 
the  paramour,  are  held  no  proof  of  collusion.^  Passive  sufferance 
or  connivance  of  the  husband  may  also  be  shown  in  bar,  both  of 
a  libel  and  a  civil  action.  But  mere  negligence,  inattention,  con- 
fidence, or  dulness  of  apprehension,  are  not  sufficient  for  this 
purpose ;  there  must  be  passive  acquiescence  and  consent,  with 

foreign  country,  his  admission  of  that  fact  «  Bull.  N.  P.  28.  But  it  must  be  actually, 

has  been  held  sTxfficient  proof  of  the  mar-  and  not  merely  primd  facie  a  valid  mar- 

nage.     Cayford's  case,  7  Greenl.  57  ;  Re-  riage,  according  to  the  law  under  which  it 

pna  w.  bimmonsto,  1   Car.  &  Kirw.  164,  was  celebrated.     Catherwood  i;.  Caslon,  13 

b.  P.     Infra,  tit.  Makkiage.  M.  &  W  261 

I  Bull-  N.  P.  28.  6  See  infra,  tit.  Marriagk. 

Dickenson   v.  Coward,   1  B.  &  Aid.  ^  Crewe  v.  Crewe,  3  Hagg.  Eccl.  R.  128 

679,  per  Ld.  Ellenborough.  140.     [Bishop  on  Marriage  and  Divorce 

«  Rigg  V.  Curgenven,  2  Wils.  399.  ch.  xviii.] 

*  Forney  v.  Hallacher,  8  S.  &  R.  159  8  i^id. 


PART  IV.J       ^  ADULTERY.  43 

the  iuteiition  and  in  the  expectation  that  guilt  will  follow.^  The 
proof,  from  the  nature  of  the  case,  may  be  made  out  by  a  train 
of  conduct  and  circumstances  ;  but  it  is  not  necessary  to  show 
connivance  at  actual  adultery,  any  more  than  it  is  necessary  to 
prove  an  actual  and  specific  fact  of  adultery  ;  for  if  a  system  of 
connivance  at  improper  familiarity,  almost  amounting  to  proxi- 
mate acts,  be  established,  the  court  will  infer  a  corrupt  intent  as 
to  the  result.^  But  if  the  evidence  falls  short  of  actual  connivance, 
and  only  establishes  negligence,  or  even  loose  and  improper  con- 
duct in  the  husband,  not  amounting  tc  consent,  it  is  no  bar  to  an 
action  for  criminal  conversation,  but  goes  only  in  reduction  of  the 
damages.^  It  is  not  always  necessary  that  the  husband  be  proved 
to  have  connived  at  the  particular  acts  of  adultery  charged  ;  for 
if  he  sufifors  his  wife  to  live  as  a  prostitute,  and  criminal  inter- 
course with  a  third  person  ensues,  he  can  have  no  action  ;  it  is 
damnum  absque  injuria}  Nor  will  an  action  lie  for  criminal  con- 
versation, had  after  the  husband  and  wife  have  separated  by  arti- 
cles of  agreement,  and  the  husband  has  released  all  claim  to  the 
person  of  his  wife  ;  for  the  gist  of  this  action  is  the  loss  of  the 
comfort,  society,  and  assistance  of  the  wife.^ 

§  52.  Recrimination  is  also  a  good  defence  to  a  libel  for  di- 
vorce ;  ^  though  it  is  no  bar  to  an  action  for  criminal  conversa- 

1  Rogers   i;.  Rogers,  3  Hagg.  Eccl.  R.  in  Boulting   v.  Boulting,  3  Swab.  &  T 

58;  Tiinmings  v.  Timmings.  lb.  76  ;  Lev-  335.] 

ering  v.  Lovering,  lb.  83 ;  Pierce  v.  Pierce,  *  Smith  v.  Alison,  Bull.  N.  P.  27,  per 

3  I'ick.  -299  ;  Dubcrlcy  v.  Gunning,  4  T.  R.  Ld.  Mansfield  ;   Sanborn  v.  Neilson,  4  N. 

655;    Bull.  N.  P.  27;  Hodges  v.  Wind-  Hamp.  591.      If  the  husband  connive  at 

ham,  Pcake's  Cas.,  49  ;  1  Selw.  X.  P.  8,  9,  adultery  with  A.,  he  cannot  have  a  divorce 

(lOth  cd.).  for  an  act  of  adultery,  nearly  contempora- 

^  Moorsum  v.  Moorsnm,  3  Hagg.  Eccl.  ncous,  with  B.     Lovering  v.  Lovering,  3 

R.  95.  Hagg.  Eccl.  R.  85. 

3  Foley  r.  Ld.  Peterborough,  4  Doug.  *  Weedon  v.  Timbrell,  5  T.  R.  357; 
294  ;  Duberley  v.  Gunning,  4  T.  R.  653.  Chambers  v.  Cauldficld,  6  East,  244  ;  Win- 
[  *  "  Connivance  is  an  act  of  the  mind  ;  it  ter  v.  Henn,  4  C.  &  P.  494  ;  Bartelot  v. 
implies  knowledge  and  acquiescence.  I  Hawker,  Peake's  Cas.  7  ;  Wilton  v.  Wcb- 
prcfcr  the  word  '  acquicj^cence  '  to  'con-  stcr,  7  C.  &  P.  198;  Harvey  y.  Watson,  7 
si^'nt,'  because  the  latter,  in  some  respects,  M.  &  G.  644.  But  if  the  separation  was 
carries  with  it  an  idea  of  leave  or  license  without  any  relinquishment  by  the  husband 
conveyed  or  signified  to  the  erring  party,  of  his  right  to  the  society  of  the  wife,  so  that 
As  a  legal  doctrine,  connivance  lias  its  a  suit  fur  restitution  of  conjugal  rights  is 
source  and  its  limits  in  this  principle,  still  maintainable,  it  is  no  bar.  Graham  v. 
volenti  non  Jit  injuria ;  a  willing  mind,  this  Wigley,  2  Roper  on  Hush.  &  Wife,  323  n. 
is  all  that  is  necessary.  Such  is  the  result  Some  of  the  earlier  cases  seem  to  favor  the 
of  the  decisions.  They  are  brought  to-  idea,  that,  if  the  sei)aration  was  i)y  deed, 
gcther  in  Sir  Herbert  Jenner's  judgment,  the  action  would  not  lie ;  but  this  notion  is 
in  Phillips  v.  Phillips,  4  Notes  of  Cas.  528.  not  now  favored,  the  true  question  being, 
But  how  is  knowledge  and  acquiescence  to  whether  the  husband  has  or  has  not  re- 
be  proved  ?  The  answer  is,  like  any  other  leased  his  right  to  her  person  and  so- 
conclusion  of  fact.     It  may  be  proved  by  ciety. 

express  language,  or  by  inference  deduced  *  Beeby  v.  Beeby,  1  Hagg.  Eccl.  R.  789;- 

from  facts  and  conduct."   4udge  Ordinary,  Forstcr  v.  Eorster,  1  Hagg.  Con.  R.   144. 


44  LAW   OF   EVIDENCE.  .         [PART  IV. 

tion.^  The  principle  on  which  this  plea  of  compensatio  criminis  is 
allowed  is,  that  the  party  cannot  justly  complain  of  the  breach 
of  a  contract  which  he  has  himself  violated.^  This  plea  may  be 
sustained  on  evidence,  not  as  strong  as  might  be  necessary  to  sus- 
tain a  suit  for  adultery  ;  ^  and  it  makes  no  difference  whether  the 
offence,  pleaded  by  way  of  compensation,  were  committed  before 
or  after  the  fact  charged  in  the  libel.*  It  has  been  questioned 
whether  a  single  act  of  adultery  is  sufficient  to  support  this  plea 
against  a  series  of  adulteries  proved  on  the  other  side  ;  but  the 
better  opinion  seems  to  be  that  it  is.^ 

§  53.  Condonation  is  a  sufficient  answer  to  the  charge  of  adul- 
tery, in  a  libel ;  but  it  does  not  follow  that  it  is  a  good  answer  to 
a  recriminatory  flea  ;  for  circumstances  may  take  off  the  effect  of 
condonation,  wliich  would  not  support  an  original  suit  for  the 
iame  cause.^  Thus,  facts  of  cruelty  will  revive  a  charge  of  adul- 
tery, though  they  would  not  support  an  original  suit  for  it.'^  Con- 
donation is  forgiveness,  with  an  implied  condition  that  the  injury 
shall  not  be  repeated,  and  that  the  party  shall  be  treated  with 
conjugal  kindness  ;  and  on  breach  of  this  condition,  the  right  to 
a  remedy  for  former  injuries  revives.^  It  must  be  free  ;  for  if 
obtained  by  force  and  violence,  it  is  not  binding  ;  and  if  made 
upon  an  express  condition,  the  condition  must  be  fulfilled. ^  It 
must  also  appear  that  the  injured  party  had  full  knowledge,  or, 
at  least,  an  undoubting  belief  of  all  the  adulterous  connection, 
and  that  there  was  a  condonation  subsequent  to  that  knowledge.^^ 

Cruelty  is  no  answer  to  a  charge  of  adul-  ^  Beeby  v  Beeby,  sufra  ;  D'Aguilar  v 

tery  ;    but  is   pleadable   together  with   a  D'Aguilar,  1  Hagg.  Eccl.  R.  782  ;  [Bishop 

counter  charge  of  adultery.      Coxedge  v.  on  Marriage  and  Divorce,  ch.  xix.] 

Coxcdge,  9  Jur.  935.     [Bishop  on  Mar-  '  Ibid, 

riage  and  Divorce,  ch.  xx.]  ^  Durant  v.  Durant,  1   Hagg.  Eccl.  R 

1  Bromley  v.  Wallace,  4  Esp.  237.  It  761 ;  Ferrers  'v.  Ferrers,  1  Hagg.  Con.  R. 
goesonlvto  the  damages  in  the  civil  ac-  130.  [*"I  think  that  the  forgiveness 
tion ;  though  Ld.  Kenyon  formerly  held  it  which  is  to  take  away  the  husband's 
good  in  bar.  Wyndham  v.  Wycombe,  4  right  to  a  divorce  must  not  fall  short  of 
Esp.  1 6.                                         "  reconciliation,  and  that  this  must  be  shown 

2  Beeby  v.  Beeby,  1  Hagg.  Eccl.  R.  789 ;  by  the  reinstatement  of  the  wife  in  her 
Forstcr  v.  Forster,  1  Hagg.  Con.  R.  153.  former  position,  which  renders  proof  of 

3  Forster  v.  Forster,  supra;  Astley  v.  conjugal  cohabitation,  or  the  restitution 
Astlev.  1   Hagg.  Eccl.  R.  714,  721.  of   conjugal    rights,    necessary."       Lord 

*  Proctor  V.  Proctor,  2  Hagg.  Con.  R.  Chelmsford,  Lord  Chan.,  Keats  v.  Keats, 

299 ;  Astley  v.  Astley,  supra.     If  the  act  1   Swab.  &  Tr.  357  ;  Ellis  v.  Ellis,  11  Jur. 

pleaded  by  way  of  recrimination  has  been  N.  S.  610.] 

forgiven,  the  condonation  is   a  sufficient  ^  Popkin  r.  Popkin,  1  Hagg.  Eccl.  R. 

answer  to  the  plea.    Anichini  v.  Anichini,  767,  note. 

2  Curt.  210.  1'^  Turton  v.  Turton,  3  Hagg.  Eccl.  R. 

5  Astley  V.  Astlev,  1  Hagg.  Eccl.  R.  722  -  351  ;  Anon.  6  Mass.  147  ;  Perkins  v.  Fer- 

724  ;  Navlor  v.  Navlor,  lb.  cit. ;  Brisco  v.  kins,  lb.   69  ;    North    v.   North,    5   Mass 

Brisco,  2*Addams.  R.  259.  320  ;  Backus  v.  Backus,  3  Greenl.  136 


PART  IV.]  ADULTERY.  45 

§  54.  Where  the  parties  have  separate  beds,  there  must,  in  order 
to  show  condonation,  be  some  evidence  of  matrimonial  connection 
beyond  mere  dwelling  under  the  same  roof.^  But  if  a  wife  over- 
looks one  act  of  human  infirmity  in  the  husband,  it  is  not  a  legal 
consequence  that  she  pardons  all  others.  It  is  not  necessary  for 
her  to  withdraw  from  cohabitation  on  the  first  or  second  instance 
of  misconduct ;  on  the  contrary,  it  is  legal  and  meritorious  for 
her  to  be  patient  as  long  as  possible  ;  forbearance  does  not  weaken 
her  title  to  relief,  especially  where  she  has  a  large  family,  and 
endures  in  the  hope  of  reclaiming  her  husband.^  But,  on  the 
other  hand,  the  situation  and  circumstances  of  the  husband  do 
not  usually  call  for  such  forbearance  ;  and  a  facility  of  condona- 
tion of  adultery  on  his  part  leads  to  the  inference  that  he  does  not 
duly  estimate  the  injury  ;  and  if  he  is  once  in  possession  of  the 
fact  of  adultery,  and  still  continues  cohabitation,  it  is  proof  of 
connivance  and  collusion.^  In  either  case,  to  establish  a  condo- 
nation, knowledge  of  the  crime  must  be  clearly  and  distinctly 
proved.* 

§  55.  In  proof  of  damages  on  the  part  of  the  plaintiffs  in  a  civil 
action  for  adultery,  evidence  is  admissible  showing  the  state  of  do- 
mestic happiness  in  which  he  and  his  wife  had  previously  lived  ; 
and  a  marriage  settlement  or  other  provision,  if  any,  for  the  chil- 
dren of  the  marriage  ;^  the  relations,  whether  of  friendship,  blood, 

1  Beeby  i-.   Becby,   1    Hagg.   Eccl.   R.  are  to  the  like  effect.     But  Dr.  Lushing- 

794 ;   Westraeath  v.  Westmeath,  2  Hagg.  ton,  iu  Snow  i;.  Snow,  2  Notes  of  Cases, 

Eccl.  R.  118,  Supt.  Supp.  15,  says,  that  the  two  offences  of 

'^  D'Agiiilar    v.    D'Aguilar,    1     Hagg.  adultery  and  cruelty  are  so  distinct  in  their 

Eccl.  R.  786 ;  Durant  v.  Durant,  lb.  752,  nature,  that  the  same  considerations  caa- 

768;  Beeby  v.  Beeby,  1  Hagg.  Eccl.  R.  not  be  equally  applicable  to  both,  as  re- 

793  ;  Turton  v.  Turton,  3  Hagg.  Eccl.  R.  spects  condonation."      Gardner  v.  Gard- 

351.  ner,  2  Gray,  434.     Cohabitation  for  a  sin- 

3  Timmings    v.    Timmings,    3    Hagg.  gle  night,  immediately  succeeding  a  series 

EccL    R.    78;    Dunn    v.   Dunn,  2   Phill.  of  acti  of  cruelty  by  a'husband  towards  his 

411.  wife,  is  not  such  a  condonation  as  will  bar 

*  Durant  v.  Durant,  1   Hagg.  Eccl.  R.  a  libel  by  the  wife  for  a  divorce  from  bed 

733.     ["  It  has  sometimes  been  supposed,  and  board  for  extreme  cruelty,  if  the  hus- 

that  the  doctrine  of  condonation,  arising  band,  by  the  violence  of  his   subsequent 

from  continued  cohabitation,  was  inappli-  conduct,  cause  a  reasonable  apprehen.sion 

cable  to  cases  of  libel  by  the  wife,  seeking  in  her  mind,  that  she  can  no  longer  cohabit 

a  divorce  for  extreme  cruelty.     The  cases  with  him,  without  imminent  danger  of 

of   Perkins  i;.  Perkins,  6   Mass.  69,   and  suffering  extreme  cruelty  from  his  assaults ; 

Hollister  v.  HoUister,  6  Barr.  449,  are  to  and  such  subsequent  violent  conduct  re- 

that  effect.    But  the  better  established  rule  vives  the  right  of  the  wife  to  proceed  for 

seems  to  be,  that  cruelty,  as  well  as  adul-  the   original   cause   for   the   divorce,   and 

tery,  may  be  the  subject  of  condonation,  effectually  bars   the  defence  of  condona- 

Burr  V.  Burr,  10  Paige,  20;   Whispell  v.  tion."  — Ibid. 

Whisptll,  4  Barb.  217  ;  Masten  i-.  Masten,         ^  Bull.  N.  P.  27  ;  1  Stephen's  N.  P.  24. 

15  N.  H.  159  ;    Bishop  on  Mar.  &  Div.  It  has  been  said,  that  the  rank  and  cir- 

g  369,  and  cases  cited.     The  English  cases  cumstances  of  the  plaintiff  may  be  given 


46  LAW   OF   EVIDENCE.  [PART  IV- 

confidence,  gratitude,  hospitality,  or  the  like,  which  subsisted  be- 
tween him  and  the  defendant ;  ^  and  the  circumstances  attendant 
upon  the  intercourse  of  the  parties.^  But  it  seems  that  evidence 
of  the  defendant's  property  cannot  be  given  in  chief,  in  order  to 
acquire  damages,  the  true  question  being,  not  how  much  money 
the  defendant  is  able  to  pay,  but  how  much  damage  the  plaintiff 
has  sustained.^  The  state  of  the  affections  and  feelings  entertained 
by  the  husband  and  wife  towards  each  other  prior  to  the  adulterous 
intercourse,  may  be  shown  by  their  previous  conversations,  deport- 
ment, and  letters ;  *  and  the  language  and  letters  of  the  wife,  ad- 
dressed to  other  persons,  have  been  received  as  evidence  for  the 
same  object.^  Conversations  also,  and  letters,  between  the  wife 
and  the  defendant,  and  a  draft  of  a  letter  from  her  to  a  friend,  in 
the  defendant's  handwriting,  have  been  admitted  in  evidence 
against  him.^  But  her  confessions  alone,  when  not  a  part  of  th€ 
res  gestce^  are  not  admissible."  If  the  wife  dies,  pending  the  suit, 
the  husband  is  still  entitled  to  damages  for  the  shock  which  has 
been  given  to  his  feelings,  and  for  the  loss  of  the  society  of  the  wife 
down  to  the  time  of  her  death  ;  and  this,  though  he  was  unaware 
of  his  own  dishonor,  until  it  was  disclosed  to  him  by  the  wife  upon 
her  death-bed.^ 

§  b^.  As  the  husband,  by  bringing  the  action,  puts  the  wife's 
character  in  issue,  the  defendant  may  show  in  what  is  called  miti- 
gation of  damages^  the  previous  bad  character  and  conduct  of  the 
wife,  whether  in  general,  or  in  particular  instances  of  unchastity  ;  ^^ 
her  letters  to  and  deportment  towards  himself,  tending  to  prove 
that  she  made  the  first  advances ; "  the  husband's  connivance  at 
the  adulterous  intercourse  ;  ^  his  criminal  connection  with  other 

in  evidence  by  him ;  but  this  has  been  de-  ters  contain  other  facts,  which  of  them- 

nied ;  for  the  character  of  the  husband  is  selves  could  not  properly  be  submitted  to 

not  in  issue,  except  merely  as  far  as  that  the  Jury.      Willis  v.  Bernard,   8  Bing. 

relation  is  concerned.     Norton  t\  Warner,  376. 

6  Conn.  172.  6    gaker  r.   Morlev,   Bull.  N.   P.   28; 

1  Ibid.  Wilton  v.  Webster,  7'C.  &  P.  198. 

2  Duke  of   Norfolk  v.   Germaine,    12        ^    Ibid. ;    Aveson   v.   Ld.    Kinnaird,  6 
How  State  Tr.  927.  East,  188;  Walter  v.  Green,   1  C.  &  P 

3  James  t-.  Biddington,  6  C.  &  P.  589.     621 ;    Winsmore    v.    Greenbank,   Willes^ 
But  in  an  action  for  breach  of  promise  to     577. 

marry,  such  evidence  is  material,  as  show-  ^  'VVHton  v.  Winsmore,  7  C.  &  P.  198, 

ing  what  would  have  been  the  station  of  per  Coleridge,  J. 

the  plaintiff  in  society,  if  the  defendant  had  ^  See  infra,  tit.  Damages,  §  265  -  267. 

not  broken  his  promise.    Ibid.     See  infra,  i^  Bull.  N.  P.  296  ;  Ibid.  27  ;  Hodges  v. 

§  267.  Windman,  Peake's  Cas.  39 ;   Gardiner  r. 

*  Ante,  Vol.  1,  §  102.  Jadis,  1  Selw.  N.  P.  24 ;  Ante,  Vol.  1,  §  54. 

6  Ante,  Vol.  1,  §  102 ;  Jones  r.  Thomp-  "  Elsam  r.  Fawcett,  2  Esp.  562. 

•on,  6  C.  &  P.  415.     Even  though  the  let-  "^    I  Steph.  N.  P.  26;  Supra,  §  51;  1 


PART  IV  J  ADULTEBT.  47 

women  ;  ^  the  bad  terms  on  which  he  previously  lived  with  his 
wife  ;  his  improper  treatment  of  her ;  his  gross  negligence  and 
inattention  in  regard  to  her  conduct  with  respect  to  the  defendant ; 
and  any  other  facts  tending  to  show  either  the  little  intrinsic  value 
of  her  society,  or  the  light  estimation  in  which  he  held  it.-  The 
evidence  produced  by  the  husband  to  show  the  harmony  previously 
subsisting  between  him  and  his  wife,  may  be  rebutted  by  evidence 
of  her  declarations  prior  to  the  criminal  intercourse,  complaining 
of  his  ill  treatment ;  and  general  evidence  of  similar  complaints 
may  be  also  given  in  reduction  of  damages.*  But  no  evidence  of 
the  misconduct  of  the  wife  subsequent  to  her  connection  with  the 
defendant  can  be  received.* 

§  57.  The  letters  of  the  wife  in  order  to  be  admitted  in  favor  of 
the  husband,  must  have  been  written  before  any  attempt  at  adul- 
terous intercourse  had  been  made  by  the  defendant.*  And  when- 
ever her  letters  are  introduced  as  expressive  of  her  feelings,  they 
must  have  been  of  a  period  anterior  to  the  existence  of  any  facts, 
tending  to  raise  suspicions  of  her  misconduct,  and  when  there  ex 
isted  no  ground  to  impute  collusion.'  But  in  all  these  cases,  the 
time  when  the  letters  were  written  must  be  accurately  shown  ;  the 
dates  not  being  suflBcient  for  this  purpose,  though  the  postmarks 
may  suffice.^ 

§  58.  Though  the  general  character  of  the  wife  is  in  issue  in  this 
action,  the  plaintiff  cannot  go  into  general  evidence  in  support  of 
it,  until  it  has  been  impeached  by  evidence  on  the  part  of  the  de- 
fendant, eitKer  in  cross-examination  or  in  chief;  but  whether  the 
plaintiff  can  rebut  the  proof  of  particular  instances  of  misconduct, 
by  proof  of  general  good  character  may  be  doubted  ;  and  the  weight 
of  authority  seems  against  its  admission.^ 

Selw.  N.  p.  23,  24.     The  pepresentation  ♦  El?am  r.  Fawcett,  2  E>p.  562. 

made  by  his  wife  to  her  husband,  on  the  •  Wilton  r.  Webster,  7  C.  &  P.  193. 

ere  of  her   elopement,    is   admi&sible,   as  •  Edwards  r.  Crock,  4  Esp.  39. 

part  of  the  rrs  pettce,  to  repel  the  impata-  ^    Edwards   r.    Crock,    4    Esp.  39 ;    1 

tion  of  connivance.      Uoare  r    Allen,  3  Steph.  X.  P.  27. 

Esp.  276.  s   Bamfield  r.  Masscv.  1   Campb.   460; 

1  Bromler  r.  Wallac*.  4  Esp  237.  Dodd  r.  Xorris  3  Campb   519 ;  Dot  Jam. 

»   Trel.awncv.  r.  Coleman.  2  Stark.  R.  Farr  r.  Hicks.  Bull.   N     P.   296 ;  4  Esjx 

191  ;   1   B.  &'Ald.  90;  Jones  r.  Tbomp-  51,  S.  C. ;  Stephenson  r.  Walker,  4  Esp. 

•on,  6  C.  &  P.  415;  Winter  r.  Wroot,  1  50,  51  ;  Bate  r.  Hill,  1  C.  &  P.  100;    ' 

11.  &  Hob.  404  Vol.  1,  §§  54,  55;  1  Steph.  N.  P.  2t 

•  Winter  r.  Wroot,  1  M.  &  Rob.  404. 


48  LAW  OF  EVIDENCE.  [PART  IV. 


AGENCY. 

[*  §  59.  Authority  of  agent  need  not  alwaya  precede  his  act.      Effect  of  act8,  some 
within  and  some  beyond  his  authority  done  at  some  time. 

60.  Evidence  of  agency  is  either  direct  or  indirect. 

61.  General  rule,  that  authority  of  agent  may  be  proved  by  parol.    Authority  to 

do  act  under  seal  must  itself  be  under  seal. 

62.  Former  rule  that  authority  of  agent  of  corporation  aggregate  could  only  be 

proved  by  deed,  now  very  much  relaxed. 

63.  If  authority  of  agent  is  in  writing,  that  is  the  best  evidence.    Declarations  of 

agent  admissible  only  as  part  of  the  res  gestae. 

64.  If  the  agency  is  inferred  from  the  relative  situation  of  the  parties,  suflBcient  to 

prove  such  relationship  by  kind  of  evidence  appropriate  to  the  case. 
64  a.  Existence  of  relation  establishes  agency  only  to  discharge  duties  ordinarily 
belonging  to  it. 

65.  Agencies  inferred  from  the  habit  and  course  of  dealing  between  the  parties,  con- 

sidered. 

66.  Subsequent  ratification  by  principal  of  act  of  another  to  be  binding  requires 

knowledge  by  the  principal  of  all  material  facts. 

67.  Long  acquiescence  by  principal  often  sufficient  evidence  of  ratification. 

68.  Authority  to  commit  a  trespass  not  implied  by  law.     But  a  servant  perpetrat- 

ing a  fraud  in  doing  a  lawful  act  renders  master  liable. 
68  a.  Proof  of  agency  may  be  rebutted  by  showing  revocation  of  authority  prior 
to  act  in  question.] 

§  59.  An  agent  is  one  who  acts  in  the  place  and  stead  of  another. 
The  act  done,  if  lawful,  is  considered  as  the  act  of  the  principal. 
It  is  not  always  necessary  that  the  authority  should  precede  the 
act ;  it  may  become  in  law  the  act  of  the  principal,  by  his  subse- 
quent ratification  and  adoption  of  it.^  The  vital  principle  of  the 
law  of  agency  lies  in  the  legal  identity  of  the  agent  and  the  princi- 
pal, created  by  their  mutual  consent.  If  the  agent  does  an  act 
within  the  scope  of  his  authority,  and  at  the  same  time  does  some- 
thing more  which  he  was  not  authorized  to  do,  and  the  two  mat- 
ters are  not  so  connected  as  to  be  inseparable,  even  though  both 
may  relate  to  the  same  subject ;  that  which  he  had  authority  to  do 
is  alone  binding,  and  the  other  is  void.^ 

1  Maclean  v.  Dunn,  4  Bing.  722 ;  Story  2  Hammond  v.  Michigan  State  Bank,  1 
on  Agency,  §  239-260  Walker,  Ch.  E.  214. 


PART  IV.J  AGENCY.  49 

§  60.  The  evidence  of  agency  is  either  direct  or  indirect.  Agency 
is  directly  proved  by  express  words  of  appointment,  whether  orally 
uttered  or  contained  in  some  deed  or  other  writing.  It  is  indi- 
rectly established  by  evidence  of  the  relative  situation  of  the  par- 
ties, or  of  their  habit  and  course  of  dealing  and  intercourse,  or  it 
is  deduced  from  the  nature  of  the  employment  or  from  subsequent 
ratification.^ 

§  61.  As  a  general  rule,  it  may  be  laid  down,  that  the  authority 
of  an  agent  may  be  proved  by  parol  evidence,  that  is,  either  by 
words  spoken,  or  by  any  writing  not  under  seal,  or  by  acts  and 
implications.^  But  to  this  rule  there  are  some  exceptions.  Thus, 
whenever  an  act  is  required  to  be  done  under  seal,  the  authority 
of  the  agent  to  do  it  must  also  be  proved  by  an  instrument  under 
seal.  A  writing  without  seal  will  not  be  sufficient  at  law  to  give 
validity  to  a  deed,  though  a  court  of  equity  might,  in  such  case, 
compel  the  principal  to  confirm  and  ratify  the  deed.^  The  prin- 
ciple of  this  exception,  however,  is  not  entirely  followed  out  in  the 
common  law  ;  for  an  authority  to  sign  or  indorse  promissory  notes 
may  be  proved  by  mere  oral  communications,  or  by  implication  ;  * 
and  even  where  the  Statute  of  Frauds  requires  an  agreement  to 
be  in  writing,  the  authority  of  an  agent  to  sign  it  may  be  verbally 
conferred.^ 

§  62.  Where  a  corporation  aggregate  is  the  principal,  it  was 
formerly  held,  that  the  authority  of  its  agent  could  be  proved  only 
by  deed,  under  the  seal  of  the  corporation.  But  this  rule  is  now 
very  much  relaxed  both  in  England  and  America  ;  and  however 
necessary  it  still  may  be  to  produce  some  act  under  the  corporate 
seal,  as  evidence  of  the  authority  of  a  special  agent,  constituted 

1  Story  on  Agency,  §  45 ;  2  Kent,  land  that  the  deed  shall  be  witnessed  by 
Comm.  612,  613;  Paley  on  Agency,  p.  2.      two  subscribing  witnesses,  a  power  of  at- 

2  Story  on  Agency,  §  47  ;  3  Cliitty  on  torney  to  convey  lands  under  such  statute 
Comm.  &  Man.  p.  5 ;  Coles  v.  Trcco-  is  not  good,  unless  witnessed  by  two  sub- 
thick,  9  Ves.  250.  [Dnunright  v  Phil-  scribing  witnesses.  Gage  v.  Gage,  10 
pot,    16    Geo.    424.      If    an    agency    be  Foster  (N.  H.),  420. 

proved,  and  there  is  no  evidence  th'at  it         *  Story  on  Agency,  §  50. 
was  a  limited  agency  the  presumption  is         6  Maclean  v.  Dunn,  4  Bing.  722  ;  Coles 

that  it  was  a  general  agency.     Methuen  v.    Trecothick,    9    Ves.    250;     Paley    on 

Co  V.  ILiycs,  33  Maine,  (3  Red  )  169.]  Agency,  by  Lloyd,  158-161  ;  Emmerson 

*  Story  on  Agency,  §  49 ;  Harrison  v.  v.  Heclis,  2  Taunt,  48  ;  Story  on  Agency, 

Ja<k;cn,  7  T.  R    207  ;  Paley  on  Agency,  §  50.     [If  an  instrument,  executed  by  an 

by  Lloyd,  157,  158.     If  the  deed  is  e.xecut-  agent,  be  one  which,  without  seal,  would 

ed   in    the   presence  of  the  principal,  no  bind  the  principal,  it  will  bind  him,  if  it  be 

other   authority  is   necessary.      Story  on  under  seal.     Wood  t;.  Auburn  and  Roch- 

Agcncy.   §  51.      [Baker   v.  Freeman,  35  ester   R.   R.   Co.  4  Seldcn,  (N.  Y.)    160. 

Maine,  485       Where  a  statute  makes  it  See    Wheeler    v.    Nevins     34   Maine,    (4 

iadispensable   to   a    good    conveyance   of  Red.)  54. 

VOL.  II.  4 


50  LAW   OF   EVIDENCE.  [PAET  lY 

immediately  by  the  corporation,  to  transact  business  affecting  its 
essential  and  vital  interests  ;  yet,  in  all  matters  of  daily  necessity, 
within  the  ordinary  powers  of  its  officers,  or  touching  its  ordinary 
operations,  the  authority  of  its  agents  may  be  proved  as  in  the  case 
of  private  persons.^  And  where  a  deed  is  signed  by  one  as  the 
agent  of  a  corporation,  if  the  seal  of  the  corporation  is  affixed 
thereto,  it  will  be  presumed,  in  the  absence  of  contradictorji  evi- 
dence, that  the  agent  was  duly  authorized  to  make  the  convey- 
ance.^ 

§  63.  If  the  authority  of  the  agent  is  in  writing,  the  writing 
must  be  produced  and  proved  ;  and  if,  from  the  nature  of  the 
transaction,  the  authority  must  have  been  in  writing,  parol  testi- 
mony will  not  be  admissible  to  prove  it,  unless  as  secondary 
evidence,  after  proof  of  the  loss  of  the  original.^  Where  the 
authority  was  verbally  conferred,  the  agent  himself  is  a  competent 
witness  to  prove  it ;  *  but  his  declarations,  when  they  are  no  part 
of  the  res  gestce,  are  inadmissible.^ 

§  64.  Where  the  agency  is  inferred  from  the  relative  situation  of 
the  parties,  it  is  generally  sufficient  to  establish  the  fact  that  the 
relationship  in  question  was  actually  created  ;  and  this  must  bo 
proved  by  the  kind  of  evidence  appropriate  to  the  case.  Thus, 
where  the  sheriff  was  sued  for  the  wrongful  act  of  a  bailiff,  it  was 
held  not  enough  to  prove  him  a  general  bailiff,  by  official  acts 
done  by  him  as  such  ;  but  proof  was  required  of  the  original  war- 

1  Story  on  Agency,  §  53 ;  East  Lon-  2  punt  v.  Clinton  Co.,   12   N.   Hamp. 

don  Waterworks   Co.   v.  Bailey,  4  Bing.  430. 

283;    Bank  of  Columbia  v.   Patterson,  7  ^  Ante,  Vol.  1,  §§  86,  87,  88;  Johnson 

Cranch,    299-305;    Smith    v.    The    Bir-  r.  Mason,  1  Esp.  89. 

mingham  Gas-Light  Co.,  I  Ad.  &  El.  526;  *   Ante,  Vol.   1,  §§  416,  417,  and  casei 

Bank  of  the  United  States  v.  Dandridge,  there  cited ;   [Gould  v.  Norfolk  Lead  Co., 

12  Wheat.  67-75;  Randal  v.  Van  Vet-  9  Cush.  352;  Downer  y.  Button,  6  Foster 

chen,   19   Johns.    60;    Dunn   v.    St.   An-  (N.  H.),  338.] 

drew's  Church,  14  Johns.  118;  Perkins  v.  &  Ante,  Vol.  1,  §  113;  Clark  v.  Bak«r, 
The  Washington  Ins.  Co.,  4  Cow.  645 ;  2  Whart.  340.  [And  such  declarations, 
Troy  Turnp.  Co.  v.  M'Chesney,  21  Wend,  although  accompanied  by  acts,  are  not 
296;  Angell  &  Ames  on  Corp.  152,  153;  admissible  in  a  suit  by  a  third  person 
Rex  V.  Bigg,  3  P.  Wms.  427.  [Melledge  against  the  principal,  to  prove  the  extent 
r.  Boston  Iron  Co.,  5  Cush.  179;  Nar-  of  the  agent's  authority.  Brigham  t?.  Pe- 
ragansett  Bank  v.  Atlantic  Silk  Co.,  3  ters,  1  Gray,  139.]  [*  It  seems  that  rep- 
Met.  282.  Where  no  one  is  specially  au-  resentations  of  an  agent,  as  to  the  exist- 
thorized  by  any  statute,  or  by  the  by-laws,  ence  of  facts  necessary  for  the  validity  of 
to  call  meetings  of  a  trading  corporation,  bonds  issued  by  him,  are  not  binding  upon 
in  the  absence  of  any  special  authority,  it  the  principal  when  the  facts  are  as  much  in 
is  competent  for  the  general  agent  of  such  the  knowledge  of  third  parties  as  of  tho 
corporation  to  notify  meetings  when,  in  agent.  Gould  v.  Sterling,  23  N.  Y.  439. 
his  judgment,  the  interest  and  business  of  See  also  New  York  Life  &  Trust  Cr  v 
the  corporation  require  it.  Stebbins  v.  Beebe,  3  Selden,  364.] 
Morritt,  10  Cush.  33.] 


PART  IV.] 


AGENCY. 


61 


rant  of  execution,  directed  by  the  sheriff  to  the  bailiff,  which  is  the 
only  source  of  a  bailiff's  autliority,  he  not  being  the  general  officer 
of  the  sheriff.!  If  the  relation  is  one  which  may  be  created  by 
parol,  it  may  be  shown  by  evidence  of  the  servant  or  agent,  actuig 
in  that  relation  with  the  knowledge  and  acquiescence  of  the  prin- 
cipal, whether  express  or  implied.^ 

§  64  a.  The  mere  existence  of  the  relation,  however,  establishes 
an  agency  no  further  than  is  necessary  for  the  discharge  of  the 
duties  ordinarily  belonging  to  it.  Thus,  the  actual  command  of 
a  ship,  as  master,  renders  the  owner  chargeable  only  for  all  such 
acts  as  are  done  by  the  master  in  the  ordinary  course  of  his  em- 
ployment.^ But  the  marital  relation  alone  will  not  render  a  hus- 
band liable,  by  raising  a  presumption  of  agency  in  the  wife,  where 
her  orders  for  goods  are  of  an  extravagant  nature,  disproportionate 
to  the  husband's  apparent  ability.* 


1  Drake  v.  Sykes,  7  T.  R.  113. 

'^  Price  V.  Marsh,  1  C.  &  P.  60;  Rex 
V.  Almon,  5  Burr.  2686 ;  Garth  v.  How- 
ard, 3  C.  &  P.  346;  8  Biiifr.  451,  S.  C. ; 
Story  on  Agency,  §  55  ;  White  v.  Edg- 
man,  1  Overton's  Tenn.  R.  19. 

^  Story  on  Agency,  §  1 16  -  123  ;  Abbott 
on  Sliipping,  Part  II.  eh.  2,  3.  [Rogers 
V.  McCune,  19  Mis.  (4  BenneL)  537. 
Tlie  master  of  a  ship  has  no  general  au- 
thority as  such  to  sign  a  bill  of  lading 
for  goods  which  are  not  put  on  board  the 
vessel,  and  if  he  does  so,  the  owners  are 
not  responsible  therefor.  Grant  v.  Nor- 
way, 2  Eng.  Law  and  Eq.  R.  337 ;  Hub- 
bersty  v.  Ward,  18  lb.  551  ;  Coleman  p. 
Riches,  29  lb.  323.] 

*  Lane  v.  Ironmonger,  1  New  Pr.  Cas. 
105 ;  Freestone  c.  Butcher,  9  C.  &  P.  643. 
[.V  general  selling  agent  is  authorized  to 
sell  goods  in  the  usual  manner,  and  only 
in  the  usual  manner  in  which  goods  or 
things  of  that  sort  are  sold.  Shaw  v. 
Stone,  1  Cush.  228.  But  such  agent  has 
no  implied  authority  to  bind  his  principals 
by  a  special  warranty ;  as  that  flour  sold 
by  him  on  their  account  will  keep  sweet 
during  a  sea- voyage,  in  the  absence  of  any 
businiss  usage  to  that  effect.  Upton  v. 
Suflblk  County  Mills,  11  lb.  586.  See 
also  Nash  i'.  Drew,  5  Cush  422.  But  sec 
Ezell  I'.  Franklin,  2  Sneed  (Tenn.),  236. 
An  agent  to  purchaje  has  authority  to 
make  representations  as  to  the  solvency  of 
his  principal.  Hunter  v.  Hudson  Kiver 
Iron  and  Machine  Co ,  20  Barb.  493. 

An  authority  to  sell  and  convey  lands 
for  cash,  confers  on  the  agent  the  right  to 
receive  the  purchase-money.  Johnson  v. 
McGruder,  15  Mis.  365.     A  letter  of  at- 


torney, which  authorizes  an  agent  to  pur- 
chase goods  belonging  to  A.  .-ind  others, 
and  draw  such  bills  as  should  be  agreed 
on  between  him  and  A.,  does  not  authorize 
the  purchase  of  such  goods  from  other  per- 
sons. Peckham  v.  Lyon,  4  McLean,  45. 
An  agent  employed  to  buy  and  sell  has  no 
authority  to  bind  his  principal  by  a  negoti- 
able note  given  for  goods  bought,  unless  the 
giving  of  such  note  be  indispensable  to  carry- 
ing on  the  business  in  which  he  is  employed. 
Temple  v.  Pomroy  et  al.,  4  Gray,  li!8. 

Where  the  agent  of  a  wharfinger  whose 
duty  it  was  to  give  receipts  for  goods  act- 
ually received  at  the  wharf,  fraudulently 
gave  a  receipt  for  goods  which  had  not 
been  received,  the  principal  was  not 
bound,  as  it  was  not  within  the  scope  of 
the  agent's  authority,  in  the  course  of  his 
employment,  to  give  such  receipt.  (Cole- 
man V.  Riches,  29  Eng.  Law  &  Eq.  R.  323. 

The  delivery  of  an  account  to  an  t.gent 
to  collect,  confers  no  authority  to  settle  it 
in  any  other  mode ;  and  if  the  agent  ex^ 
ceeds  his  authority,  the  principal  does  not 
ratify  his  act  by  neglecting  to  give  notice 
that  he  repudiates  it.  Powell  v.  Henry, 
27  Ala.  612;  Kirk  v.  Hiatt,  2  Carter 
(Ind.),  322.  Authority  to  an  agent  to 
"settle,"  is  not  authority  to  submit  to  arl)i- 
tration.  Huber  v.  Zimmerman,  21  Ala.  488 

A  general  agent  of  an  insurance  com 
pany  binds  his  principal,  although  he  de- 
parts from  his  instructions;  unless  those 
with  whom  he  is  dealing  have  notice  that 
he  is  transgressing  his  authority.  N.  Y. 
Central  Ins.  Co.  ;-•.  National  Pro.  Ins.  Co., 
20  Barb.  468;  Hunter  v.  Hudson  River 
I.  &  M.  Co.,  lb.  493.  See  also  Barber  v. 
Brittou,  26  Vt.  (3  Deane,)  112;  Linsley 


62 


LAW   OF  EVIDENCE. 


[part  IV 


§  65.  The  most  numerous  class  of  cases  of  agency  is  that  which 
relates  to  affairs  of  trade  and  commerce,  where  the  agency  is 
proved  by  inference  from  the  hahit  and  course  of  dealing  between 
the  parties.  This  may  be  such  as  either  to  show  that  there  must 
have  been  an  original  appointment,  or  a  subsequent  and  continued 
ratification  of  the  acts  done  ;  but  in  either  case  the  principal  is 
equally  bound.  Having  himself  recognized  another  as  his  agent, 
factor,  or  servant,  by  adopting  and  ratifying  his  acts  done  in  that 
capacity,  the  principal  is  not  permitted  to  deny  the  relation  to  the 
injury  of  third  persons,  who  have  dealt  with  him  as  such.^  Cases 
frequently  occur  in  which,  from  the  habit  and  course  of  conduct 
and  dealing  adopted  by  the  principal,  the  jury  have  been  advised 
and  permitted  to  infer  the  grant  of  authority  to  one  to  act  as  his 
salesman  ,2  broker,^  servant,*  or  general  agent,^  and  even  to  his 
wife,^  to  transact  business  in  his  behalf ;  and  he  has  been  accord- 
ingly held  bound.  A  single  payment,  without  disapprobation,  for 
what  a  servant  bought  upon  credit,  has  been  deemed  equivalent  to 
a  direction  to  trust  him  in  future  ;  ^  and  the  employer  has  been 


o.  Lovely,  lb.  1 23 ;  Chouteaux  v.  Leech, 
18  Penn,  State  R.  (6  Harris,)  224.  But 
the  authority  of  an  agent,  however  gener- 
al, if  capable  of  being  executed  in  a  law- 
ful manner,  is  never  to  be  extended  by 
construction  to  acts  prohibited  by  law,  so 
as  to  render  his  innocent  principal  liable 
in  a  criminal  prosecution.  Claris  v.  Met- 
ropolitan Bank,  3  Duer  (N.  Y.),  241.] 

1  2  Kent  Comm.  614,  615.  The  de- 
cisions on  implied  agencies  are  collected 
and  arranged,  with  just  discrimination,  in 
1  Hare  &  Wallace's  American  Leading 
Cases,  p.  398  -  404.  [*  Where  the  ques- 
tion is,  whether  an  agent,  (not  having, 
by  the  papers  which  appointed  him  and 
defined  his  powers,  any  authority  to  alter 
a  policy  issued  by  his  principal, )  was  permit- 
ted to  alter  a  policy  in  respect  to  dates  of 
sailing,  from  time  to  time,  so  that  that  be- 
came the  ordinary  usage  and  course  of  busi- 
ness, the  testimony  must  show,  at  least, 
several  cases  in  which  the  agent,  without 
asking  any  sanction  of  the  principal,  had 
made  alterations  of  like  nature,  on  which 
the  principal  had  acted,  and  in  which  he 
had  acquiesced  when  they  came  to  his 
knowledge  ;  or  it  must  tend  to  prove,  that, 
although  communicated  by  the  agent,  they 
were  acquiesced  in  by  the  principal,  as  be- 
ing acts  which  the  agent  was  comjjctent  to 
perform,  and  were  considered  binding;  or 
that  he  was  hold  out  to  the  public  as  au- 
thorized to  do  such  acts.  Bunten  v.  Orient 
Ins  Co.,  4  Bosw.  254.J 


2  Story  on  Agency,  §  55 ;  Harding  v. 
Carter,  Park  on  Ins.,  p.  4 ;  Prescott  v 
Flinn,  9  Bing.  19.  Evidence  that  the  de- 
fendant's son,  a  minor,  had  in  three  or  four 
instances  signed  for  his  father,  and  had 
accepted  bills  for  him,  has  been  held  suffi- 
cient prima  facie  evidence  of  authority  to 
sign  a  collateral  guaranty.  Watkins  v. 
Vince,  2  Stark.  R.  368.  [*  So,  to  justify  a 
jury  in  finding  that  a  mercantile  clerk  had 
authority  from  his  superiors  to  sign  ship- 
ping bills  in  their  names,  it  is  sufficient 
to  show,  that  he  had  before  done  such  acts, 
or  occupied  a  position  in  the  bnsiness  of  the 
house  which  usually  entitles  the  incumbent 
to  perform  such  acts.  Dows  v.  Greene,  1 6 
Barb.  72.] 

3  Whithead  v.  Tuckett,  15  East,  400. 
*  Hazard  v.  Treadwell,  1  Stra.  506. 

s  Burt  V.  Palmer,  5  Esp.  145;  Peto  v 
Hague,  5  Esp.  134. 

**  Palethorp  v.  Furnish,  2  Esp.  511  ; 
ante,  Vol.  1,  §  185,  and  cases  there  cited; 
Emerson  v.  Blondon,  1  Esp.  142 ;  Ander- 
son V.  Sanderson,  2  Stark.  R.  204;  Clifford 
V.  Burton,  I  Bing.  199;  1  Bl.  Comm.  430; 
Fenner  v.  Lewis,  10  Johns.  38;  Lord  v. 
Hall,  8  M.  G.  &  S.  627. 

■^  1  Bl.  Comm.  430 ;  Bryan  v.  Jackson, 
4  Conn.  291  ;  Story  on  Agency,  §  56. 
[But  it  is  no  proof  of  authority  of  a  party 
to  make  purchases  for  another,  that  on  a 
former  occasion  the  latter  has  pnid  accounts 
in  which  articles  were  included  which  had 
been  so  purchased  in  his  name,  if  it  aijpear 


PART  IV.]  AGENCY.  63 

held  bound  in  such  case,  though  he  sent  Jiim  the  second  time  with 
ready  money,  which  the  servant  embezzled.^  In  regard  to  the  pay- 
ment of  moneys  due,  the  authority  to  receive  payment  is  inferred 
from  the  possession  of  a  negotiable  security  ;  and  in  regard  to 
bonds  and  other  securities  not  negotiable,  the  person  who  is  in- 
trusted to  take  the  security,  and  to  retain  it  in  his  custody,  is 
generally  considered  as  intrusted  with  power  to  receive  the  money, 
when  it  becomes  due.^ 

§  66.  Where  the  agency  is  to  be  proved  by  the  subsequent  ratifi- 
cation and  adoption  of  the  act  by  the  principal,  there  must  be  evi- 
dence of  previous  knowledge  on  the  part  of  the  principal  of  all  the 
material  facts.'*  The  act  of  an  unauthorized  person  in  such  cases, 
is  not  void  but  voidable  ;*  but  when  the  principal  is  once  fully  in- 
formed of  what  has  been  done  in  his  behalf,  he  is  bound,  if  dissatis- 
fied, to  express  his  dissatisfaction  within  a  reasonable  time  ;  and 
if  he  does  not  his  assent  will  be  presumed.^  But  where  the  act  of 
the  agent  was  by  deed,  the  ratification  also  must  in  general  be  by 
deed  ;  ^  or,  more  generally  speaking,  wherever  the  adoption  of  any 
particular  form  or  mode  is  necessary  to  confer  the  authority  in  the 
first  instance,  the  same  mode  must  be  pursued  in  the  ratification.^ 
riie  acts  and  conduct  of  the  principal,  evincing  an  assent  to  the 
let  of  the  agent,  are  interpreted  liberally  in  favor  of  the  latter ; 

ihat  he  was  ignorant  that  such  things  were  Cunningham,   3    Pet.    81;    Courteen    v. 

imbraced    in   the  account.      Tebbetts   v.  Touse,  I  Cainpb.  43,  n.     See  also  VViisoa 

VIoorc,  19  N.  H.  369.]  r.  Tummon,  6  Scott,  N.  R.  894  ;  [Nixon  u. 

1  Kushby  v.  Scarlett,  5  Esp.  76 ;  Hazard  Palmer,  4  Selden  (N.  Y.),  398.] 
».  Treadwell,  I  Stra.  506 ;  Story  on  Agen-         *  Denn  v.  Wright,  1  Pet.  C.  C.  R.  64. 
r.y,  §  .56.  ^  Cairncs  v.  Bleecker,   12  Johns.  300; 

■^  Story  on  Bills,  §  41.5  ;  Story  on  Agen-  Bradin  v.  Dubary,  14  S.  &  R.  27  ;  Amory 

ty,  §§  98,  104;  Wolstcnholm  v.  Davies.  2  v.  Hamilton,  17  Mass.  103;   Ward  v.  Ev- 

Freem.  289  ;  2  Eq.  Cas.  Abr.  709  ;  Duchess  ans,  2  Salk.  442.     If  he  assents  while  igno- 

of  Cleaveland  v.  Dashwood,  2  Freem.  249 ;  rant  of  the  facts,  he  may  disaffirm  when 

2  Eq.  Cas.  Abr.  708;  Owen  i'.  Barrow,  1  informed  of  them.    Copeland  t;.  Merchants' 

New  Rep.  101 ;  Kingman  v.  Pierce,  17  Mass.  Ins.  Co.,  6  Pick.  198.     [The  rule  is  a  very 

247  ;  Anon.  1 2  Mod.  564 ;  Gerard  v.  Baker,  stringent  one,  that,  where  the  principal  has 

1  Ch.  Cas.  94.     [A  jjurchase  by  a  principal,  a  full  knowledge  of  the  acts  of  his  agent 

personally  and  on  his  own  credit,  of  goods  from  which  he  receives  a  direct  benefit,  he 

telected  by  his  agent,  is  no  authority  for  must  dissent  and  give  notice  of  his  dissent 

subsequent  sales  to  the  agent  alone  on  the  within  a  reasonable  time,  or  his  as.sent  and 

principal's  credit.     Town's  Adm's  v.  Hen-  ratification  will  be  presumed.      Brighara 

dee,  1  Williams  (Vt.),  258.     Evidence  that  et  al.  i;.  Peters  et  al.,  1   Gray,  147.     See 

one  negotiable  note,  given  to  one  person  also  Lindsloy  v.  Malone,  23  Penn.  State  R. 

by  an  agent  in  behalf  of  his  principal,  was  (11  Harris,)  24.] 

paid  by  the  principal  under  protest,  and,  on         ''  Blood  v.  Goodrich,  9  Wend.  68;  12 

receiving  satisfactory  indemnity  from  the  Wend.   525,   S.    C. :    Story   on    Agency, 

agent,  is  not  sufficient  evidence  of  the  au-  §  252. 

ihority  of  the  agent  to  bind  the  principal         '  Despatch  Line,  &c.  v.  Bellamy  Man. 

by  a  similar  note  to  another  person.    Tern-  Co.,  12  N.  Hamp.  205  ;  Boyd  v.  Dobson.  5 

pie  V.  Pomrov  et  al.,  4  Gray,  128.]  Humphr.  37. 
8  Owens  V.   Hull.  9  Pet.  607;   Bell  v. 


54  LAW   OF  EVIDENCE.  [PART  IV. 

and  slight  circumstances  will  sometimes  suffice  to  raise  the  pre- 
sumption of  a  ratification  ;  which  becomes  stronger,  in  proportion 
as  the  conduct  of  the  principal  is  inconsistent  with  any  other  sup- 
position.^ Thus,  if  goods  are  sold  without  authority,  and  the 
owner  receives  the  price,  or  pursues  his  remedy  for  it  by  action  at 
law  against  the  purchaser,  or  if  any  other  act  be  done  in  behalf  of 
another,  who  afterwards  claims  the  benefit  of  it,  this  is  a  ratifica- 
tion.^ Payment  of  a  loss,  upon  a  policy  subscribed  by  an  agent, 
is  evidence  that  he  had  authority  to  sign  it.^  Proof  that  one  was 
in  the  habit  of  signing  policies  in  the  name  and  as  the  agent  of 
another,  and  with  his  knowledge,  is  evidence  of  his  authority  to 
sign  the  particular  policy  in  question  ;  *  and  if  the  principal  has 
been  in  the  habit  of  paying  the  losses  upon  policies  so  signed  in  his 
name,  this  has  been  held  sufficient  proof  of  the  agency,  though  the 
authority  was  conferred  by  an  instrument  in  writing."  And  an 
authority  to  sign  a  policy  is  sufficient  evidence  of  authority  to  ad- 
just the  loss.^  Where  the  principal,  in  an  action  against  himself 
on  a  policy  signed  by  an  agent,  used  the  affidavit  of  the  agent  to 
support  a  motion  to  put  off  the  trial,  in  which  the  agent  stated 
that  he  subscribed  the  policy  for  and  on  account  of  the  defendant, 
this  was  held  a  ratification  of  the  signature.'^ 

.  §  67.  Long  acquiescence  of  the  principal,  after  knowledge  of  the 
act  done  for  him  by  another,  will  also,  in  many  cases,  be  sufficient 
evidence  of  a  ratification.  If  an  agency  actually  existed,  the  si- 
lence or  mere  acquiescence  of  the  principal  may  well  be  taken  as 
proof  of  a  ratification.  If  there  are  peculiar  relations  between  the 
parties,  such  as  that  of  father  and  son,  the  presumption  becomes 
more  vehement,  whether  there  was  an  agency  in  fact  or  not,  and 
the  duty  of  disavowal  is  more  urgent.  And  if  the  silence  of  the 
principal  is  either  contrary  to  his  duty,  or  has  a  tendency  to  mis- 
lead the  other  side,  it  is  conclusive.     Such  is  the  case  among  mer- 

1  Story  on   Agency,   §  253 ;    Ward  v.  fies  the  contract  made  by  another,  assum- 
Evans,  2  Salk.  442.  ing  to  act  for  him,  he  must  ratify  it  as  the 

2  Peters  v.  Ballistier,  3  Pick.  495.  But  agent  has  made  it.  Brigham  i;." Palmer,  3 
if  the  action  is  discontinued  or  withdrawn,  Allen,  450.] 

on  discovering  that  the  remedy  is  raiscon-         ^  Courteen  v.  Touse,  2  Campb.  43,  n. 

ceived,  it  is  not  a  ratification.     Ibid.     See         *  Neal  ;».  Irving,  1  Esp.  61. 

also   Lent    v.  Padclford,    10   Mass.    230  ;         6  Haughton  v.  Ewbank,  4  Campb.  88. 

Episcopal  Charit.  Soc.  v.  Epis.  Ch.  in  Ded-  So  of  bills  of  exchange.     Hooe  v.  Oxiey,  1 

ham,  1  Pick.  372;  Kupfer  v.  Augusta,  12  Wash.  19,  23. 

Mass.  185;  Odiorne  v.  Maxcy,  13  Mass.         «  Richardson    v.  Anderson,    1    Campb. 

178;    Herring    ;;.    Policy,    8   Mass.    113;  43,   n.      See  also   2   Kent,   Comm.    614 

Pratt  V.  Putnam,  13  Mass.  361  ;  Fisher  v.  615. 

Willard,  lb.  379 ;  Copeland  v.  Merchants'         "^  Johnson   v.  Ward,  6  Esp.  47  ;    ante, 

Ins.  Co..  6  Pick.  198.     [*  If  on",  party  rati-  Vol.  1,  §§  196,  210. 


PART  IV.]  AGENCY.  55 

chants,  when  notice  of  the  act  done  is  given  by  a  letter  which  is 
not  answered  in  a  reasonable  time.  Whether  a  mere  voluntary 
intermeddler,  without  authority,  is  entitled  to  the  benefit  of  the 
principal's  silence,  is  not  clearly  agreed  ;  but  the  better  opinion  is, 
that  where  the  act  was  done  in  good  faith,  for  the  apparent  benefit 
of  the  principal,  who  has  full  notice  of  the  act,  and  has  done  noth- 
ing to  repudiate  it,  the  agent  is  entitled  to  the  benefit  of  his  silence 
as  a  presumptive  ratification.^ 

§  G8.  If  the  act  of  the  agent  was  in  itself  unlaivful  and  directly 
injurious  to  another,  no  subsequent  ratification  will  operate  to 
make  the  principal  a  trespasser;  for  an  authority  to  commit  a 
trespass  does  not  result  by  mere  implication  of  law.  Tlie  master 
Is  liable  in  trespass  for  the  act  of  his  servant,  only  in  consequence 
of  his  previous  express  command  ;  ^  which  may  be  proved,  either 
by  direct  evidence  of  the  fact,  or  by  his  presence  at  the  time  of  the 
transaction,  or  by  any  other  legal  evidence  which  will  satisfy  the 
jury.  In  the  absence  of  such  proof,  the  master  is  not  liable  in 
tort;  for  the  only  act  of  the  master  is  the  employment  of  the  ser- 
vant, from  which  no  immediate  prejudice  can  arise  to  any  one  ; 
and  the  only  autliority  presumed  by  the  law,  is  an  authority  to  do 
all  lawful  acts  belonging  to  his  employment.^  But  if  the  servant, 
in  doing  such  acts  perpetrates  a  fraud  upon  another,  or  occasions  a 
consequential  injury,  the  master  is  liable  in  an  action  on  the  case.* 
Tims,  where  the  defendant,  being  the  owner  of  a  house,  employed 

1  Story  on  Agency,  §§  255,  256,  257,  Reed,  9  Watts  &  Serg.  72.     The  sheriff, 

258,  cum  notis ;   Amory  i'.  Hamilton,    17  however,  on  grounds  of  public  policy,  is 

Mass.   103  ;   Kingman  v.  Pierce,  lb.  247  ;  liable,  in  trespass,  for  the  act  of  his  deputy. 

Frothingham  v.  Haley,  3  Mass.  70;  Erick  Campbell  t>.  Phelps,  17  Mass.  244;   I  Pick. 

V.  Johnson,  6  Mass.  193.      [See  Abbe  v.  62.     [*  The  principal  cannot  be  permitted 

Rood,  6  McLean,  156.     The  rule  is  other-  to  enjoy  the  fruits  of  a  bargain,  without 

wise  where  the  agency  is  illegal.    Harrison  adopting  all  the  i«strumentalities  employed 

V.  McHcnry,  9  Geo.  164.]  _  by  the  agent  in  h-.iiging  it  to  aconsumma- 

'^  See  1  Parsons  on  Contr.  pp.  69',  70,  n.  tion.    If  an  agent  d*-,frauds  the  person  with 

[A  corporation  may  be  sued  for  an  assault  whom  he  is  dealing,  the  principal,  not  hav- 

and  battery,  committed  by  their  servant,  ing  authorized  or  participated  in  the  wrong, 

acting  under  their  authority.      Moore   v.  may,  no  doubt,  rescind,  when  he  discovers 

Fitchburg  Railroad  Co.,  4  Gray,  465.]  the  fraud,  on  the  terms  of  making  complete 

"^  Mc.Manus   v.  Crickett,    1   East,   106 ;  restitution.     But  so  long  as  he  retains  the 

Middleton  v.  Fowler,  1  Salk.  282 ;  Odiorne  benefits   of  the  dealing,  he  cannot  claim 

y.  Ma.xcy,  13  Mass.  178;   Salem  Bank  v.  immunity  on  the  ground  that  the  fraud  wa.* 

Gloucester  Bank,  17  Mass.  1 ;  Wvman  p.  committed  by  his  agent,  and  not  by  him- 

The  Hal.  and  Augusta  Bank,  14  Mass.  58  ;  self.     Elwell  v.  Charaberlin,  31  N.  Y.  619. 

Wilson  y.  Tummon,  6  Scott,  N.  R.  894;  Where  an  agent  buys  an  article  for  his  prin- 

fSouthwick  V.  Estes,  7  Cush.  385.]  cipal,  and  the  price  goes  down,  another 

*  Story  on  Agency,  §  308  ;  1  Bl.  Coram,  agent  of  the  same  principal  has  no  author- 

431  ,  Foster  v.  The  Essex  Bank,  17  Mass.  ity  to  repudiate  the  contract,  unless  spe- 

479 ;  Gray  v.  The  Portland  Bank,  3  Mass.  ciallv  directed  so  to  do.     Law  v.  Cross,  I 

264  ;  Williams  v.  Mitchell,  1 7  Mass.  98  ;  Black,  U.  S.  533.J 
Lane  i'.  Cotton,  12  Mod.  488;    Shaw  y. 


56 


LAW   OF  EVIDENCE. 


[part  IV. 


an  agent  to  sell  it,  and  the  agent  described  it  as  free  from  rates 
and  taxes,  not  knowing  it  to  be  otherwise  ;  but  it  was  in  fact 
liable  to  certain  rates  and  taxes,  as  the  owner  knew  ;  and  on  the 
faith  of  the  agent's  representation,  the  plaintiff  bought  the  house  ; 
it  was  held,  that  the  purchaser,  being  actually  deceived  in  his  bar- 
gain, might  maintain  case  for  deceit  against  the  owner,  though  it 
did  not  appear  that  the  latter  had  instructed  the  agent  to  make 
any  representation  as  to  rates  and  taxes.^ 

§  68  a.  The  proof  of  agency,  thereby  charging  the  principal, 
may  be  rebutted  by  showing  that  his  authority  was  revoked  prior 
to  the  act  in  question.  But  if  he  was  constituted  by  writing,  and 
the  written  authority  is  left  in  his  hands  subsequent  to  the  revoca- 
tion, and  he  afterwards  exhibits  it  to  a  third  person,  who  deals 
with  him  on  the  faith  of  it  without  notice  of  the  revocation,  or  the 
knowledge  of  any  circumstances  sufficient  to  have  put  him  on  his 
guard,  the  act  of  the  agent,  within  the  scope  of  the  written  au 
thority  will  bind  the  principal  .^ 


1  Fuller  V.  Wilson,  3  Ad.  &  El.  56,  N.  S. 
[When  the  principal,  knowing  a  material 
defect  in  his  property,  employs  an  agent 
who  is  ignorant  of  such  defect,  to  sell  or  let 
the  property,  and  such  agent,  in  conse- 
quence, unconsciously  makes  a  false  repre- 
sentation to  the  purchaser,  thereby  inducing 
a  contract,  the  principal  will  be  bound  by 
such  misrepresentation.  National  Ex- 
change Co.  V.  Drew,  32  Eng.  Law  and  Eq. 
K.  1.]  [*  In  BeU  v.  Day,  32  N.  Y.  (Ct.  Ap.) 
165,  it  is  held,  that,  where  the  principal 
delivered  money  to  her  agent  to  be  loaned, 
and  the  agent,  without  authority  from,  or 
the  knowledge  of,  the  principal,  in  loaning 
the  money,  charges,  besides  lawful  inter- 
est, a  bonus  for  himself,  the  contract  of  loan 
is  not  thereby  rendered  usurious,  Davis 
and  Brown,  JJ.,  dissenting.  This  case 
was  decided  upon  the  authority  of  Condit 
V.  Baldwin,  21  lb.  219.  In  the  latter  case, 
Comstock,  C.  J.,  and  Denio  and  Welles, 
JJ.,  dissented.  Authority,  without  re- 
striction, to  an  agent  to  sell,  carries  with  it 
authority  to  warrant.  Schuchardt  v.  Al- 
iens, 1  Wallace,  U.  S.  R.  369.] 

2  Beard  v.  Kirk,  1 1  N.  Hamp.  397. 
Note.      [Mr    Justice  Story  (Story  on 

Agency,  ch.  xviii.)  states  the  law  in  regard 
to  the  dissolution  or  determination  of 
agency  in  substance  as  follows :  An  agency 
may  be  dissolved,  either  by  the  revocation 
of  the  principal,  or  by  the  renunciation  of 
the  agent,  or  by  operation  of  law,  as  where 
the  event  occurs,  or  the  period  expires,  to 
which  and  by  which  it  was  originally  lim- 
ited ;  or  where  the  state  and  condition  of 


the  principal  or  agent  has  changed ;  or 
where  the  principal  or  agent  dies ;  or 
where  the  subject-matter  of  the  agency  has 
become  extjnct,  or  the  principal's  power 
over  it  has  ceased  ;  or  where  the  trust  con- 
fided to  the  agent  has  been  completely  exe- 
cuted. In  general,  a  principal  may  deter- 
mine or  revoke  the  authority  given  to  his 
agent,  at  his  mere  pleasure,  and  this  is  so 
even  if  the  authority  be  expressly  declared 
to  be  irrevocable,  unless  it  be  coupled  with 
an  interest,  or  unless  it  was  given  for  a 
valid  consideration.  But  where  an  author 
ity  or  power  is  coupled  with  an  interest,  or 
whb.^  It  is  given  for  a  valuable  considera- 
tion, or  where  it  is  part  of  a  security,  then, 
unless  there  is  an  express  stipulation  that 
it  shall  be  revocable,  it  is,  from  its  own  na- 
ture and  character,  irrevocable  in  contem- 
plation of  law,  whether  it  is  or  is  not 
expressed  to  be  so  upon  the  face  of  the  in- 
strument conferring  the  authority.  If  the 
authority  has  been  in  part  executed  by  the 
agent,  and  if  it  admits  of  severance,  or  of 
being  revoked  as  to  the  part  unexecuted,  it 
would  seem  that  the  revocation,  either  as  to 
the  agent  or  as  to  third  persons,  is  good  as 
to  the  part  unexecuted,  but  not  as  to  the 
part  already  executed.  If  the  authority  is 
not  thus  severable,  the  principal,  it  would 
seem,  cannot  revoke  the  unexecuted  part, 
at  least,  without  fully  indemnifying  the 
agent ;  and,  it  would  seem,  the  right  of 
the  other  contracting  party  would  not  be 
affected  by  the  revocation. 

The  revocation  may  be  express,  as  by 
a  direct  and   formal  declaration  publicly 


PART  IV.] 


AGENCY. 


67' 


made  known,  or  by  an  informal  writing, 
or  by  parol;  or  it  may  be  implied  from 
circumstances,  as  where  the  principal  em- 
ploys another  person  to  do  the  same  act, 
and  the  exercise  of  the  authority  of  both  is 
incompatible ;  or  where  the  principal  should 
himself  collect  the  debts,  which  he  had  pre- 
viously authorized  the  agent  to  collect. 

The  revocation  takes  effect  as  to  the 
agent,  when  it  is  made  known  to  him  ;  as 
to  third  persons,  when  it  is  made  known  to 
them,  and  not  before.  Hence,  if  an  agent 
is  employed  to  sign,  indorse,  or  accept  bills 
and  notes  tbr  his  principal,  and  he  is  dis- 
charged by  the  principal,  if  the  discharge 
is  noc  known  by  persons  dealing  with  him, 
notes  and  bills  subsequently  signed,  in- 
dorsed, or  accepted  by  the  agent,  will  be 
binding  upon  the  principal,  upon  the  well- 
known  maxim  of  law  and  equity,  that, 
where  one  of  two  innocent  persons  must 
sufter,  he  shall  suffer,  who,  by  his  confi- 
dence or  silence  or  conduct,  has  misled  the 
other. 

An  instance  of  the  revocation  of  the  au- 
thority of  an  agent,  through  the  operation 
of  law,  by  a  change  of  condition  or  of 
state,  producing  incapacity  in  either  party, 
when  such  authority  is  not  coupled  witli 
an  interest,  is  where  an  unmarried  wo- 
man, as  principal,  gives  authority  to  an 
■gent,  and  afterwards  marries,  the  mar- 


riage revokes  the  authority.  So  where 
the  principal  becomes  insane,  the  lunacy 
having  been  established  by  an  inquisition, 
it  would  seem  that  the  authority  of  the 
agent  would  or  might  be  revoked  or  sus- 
pended, during  the  continuance  of  the  in- 
sanity. The  bankruptcy  of  the  principal 
operates  as  a  revocation  of  the  authority 
of  the  agent,  touching  any  rights  of  prop 
erty  of  which  he  is  devested  by  the  bank- 
ruptcy. Where  the  authority  is  coupled 
with  an  interest,  as  it  need  not  be  exe- 
cuted in  the  name  of  the  principal,  but  is 
valid  if  executed  in  the  name  of  the  agent, 
it  is  not  revoked  by  the  marriage,  or  in- 
sanity, or  bankruptcy  of  the  principal. 

The  death  either  of  the  principal  or 
agent,  operates  as  a  revocation  of  the  au- 
thority of  the  agent,  if  such  authority  is 
not  coupled  with  an  interest;  even  though 
the  authority  is  declared  in  express  terms 
to  be  irrevocable.  Hunt  v.  Rousmaniere's 
Adm'r,  8  Wheat.  174.  See  also  Wilson 
V.  Edmonds,  .3  Foster  (N.  H.),  360:  Dick 
V.  Page,  17  Mis.  (2  Bennett,)  234;  Mc- 
Donald V.  Black,  20  Ohio,  185.  The  pay- 
ment of  money  to  an  agent  after  the  death 
of  the  principal,  the  death  being  unkown 
to  both  parties,  is  a  good  payment,  and 
binds  the  estate  of  the  principal.  Cassiday 
V.  McKenzie,  4  Watts  &  Serjf.  282.  Se«» 
post,  %  518.] 


68  LAW    OF   EVIDENCE.  '  [PART  IV 


ARBITRATION    AND    AWARD. 

*  §  69.   Submission  to  arbitration,  how  made,  and  the  remedy  upon  the  award. 

70.  Action  of  debt  on  the  award  sometimes  preferable  remedy.     On  submission  by 

deed  with  penalty,  best  remedy  is  debt  for  the  penalty. 

71.  Sufficient  authority  of  arbitrators  to  make  an  award  must  first  be  proved. 

72.  Concurrent  and  mutual  promises   must  be  proved  when  submission  is  by 

parol. 

73.  When  award  is  m;ide  by  an  umpire  his  appointment  must  be  proved. 

74.  The  award  must  pursue  the  submission.     Presumption  that  all  matters  in- 

cluded in  submission  were  laid  before  arbitrators  not  conclusive. 

75.  Publication  of  award  must  be  proved ;  what  constitutes  publication. 

76.  Demand  of  payment  need  not  be  proved  generally. 

77.  Performance  of  conditions  precedent  to  be  performed  by  plaintiff  must  be 

proved. 

78.  79  and  80.   Defences  to  actions  on  awards. 

81.  Plea  of  noil  assumpsit  to  an  action  of  assumpsit  upon  a  submission  by  parol, 
unrestricted  by  rules  of  court  puts  in  issue  every  material  averment.] 

§  69.  A  SUBMISSION  to  arbitration  may  be  by  parol,  with  mu- 
tual promises  to  perform  the  award  ;  or  by  deed  or  by  rule  of 
court ;  or  by  any  other  mode  pointed  out  by  statute.^  In  the  first 
case,  the  remedy  may  be  by  an  action  of  assumpsit,  upon  the 
promise  to  perform  the  award  ;  in  the  second,  it  may  be  by  debt 
for  the  penalty  of  the  arbitration  bond,  or  by  eovenaiit,  upon  the 
agreement  or  indenture  of  submission  ;  in  the  third  case,  it  may 
be  by  attachment,  or  by  execution  upon  the  judgment  entered  up 
pursuant  to  the  rule  of  court,  or  to  the  statute  ;  and  in  any  case 
it  may  be  by  an  action  of  debt  upon  the  award.  An  award,  duly 
made  and  performed,  may  also  be  pleaded  in  bar  of  any  subse- 
quent action  for  the  same  cause. ^ 

1  [The  tendency  of   modern  jurispru-  namely,  a  verbal  submission  to  a  sinjjle  ar 

dence  is  to  give  force,  conclusiveness,  and  bitrator,    the    declaration    is    as   follows : 

effect,  to  all  awards,  where  there  is  no  cor-  "For  that  on there  were  divers  con- 

ruption  or  misconduct  on  the  parts  of  ref-  troversies   between   the   plaintiff  and   the 

erees,   and  where  no  deception  has  been  said  D,  concerning  their  mutual  accounts, 

practised   upon  them.     By   Shaw,   C.  J.,  debts,  and  dealings,  and  thereupon  they 

in    Fairchild    v.    Adams,   11    Cush.    550;  then,  at ,  by  their  mutual  agreement. 

Strong  V.  Strong,  9  lb.  560;  Kendrick  v.  appointed  one  E  to  hear  and  determine  for 

Tarbcll,  26  Vt.  416;  Ebert   v.  Ebert,  5  them  all  the  said  controversies,  and  mu- 

Md.  .353.]  tually  promised  each  other  to  stand   to, 

^  In   the  simplest  form  of  arbitration,  abide  by,  and  perform  the  award  of  the 


\RT  IV.] 


ARBITRATION   AND   AWARD. 


59 


§  70.  The  action  of  debt  on  the  award  itself  is  sometimes  'prefer- 
hie  to  any  other  form  of  action,  inasmuch  as  if  judgment  goes  by 
3fault,  it  is  final  in  the  first  instance,  the  sum  to  be  recovered 
sing  ascertained  through  the  medium  of  the  award  ;  whereas  in 
3bt  on  the  bond,  breaches  must  be  suggested  and  a  hearing  had 
iirsuant  to  statutes  ;  and  in  assumpsit,  and  in  covenant,  the  judg- 
lent  by  default  is  but  interlocutory. ^  But  this  is  only  where  the 
ward  is  for  a  single  sum  of  money  ;  for  if  it  is  to  do  any  other 
ling,  the  remedy  should  be  sought  in  some  other  mode.  Where 
16  submission  is  by  deed,  with  a  penalty,  the  best  form  of  action 

debt  for  the  penalty  ;  for  by  declaring  on  the  award,  the  plain- 
ff  takes  upon  himself  the  burden  of  proving  a  mutual  submis- 
on  ;  but  by  declaring  on  the  bond,  he  transfers  the  burden  to 
le  defendant,  on  whom  it  will  then  lie  to  discharge  himself  of 
le  penalty,  by  showing  a  performance  of  the  conditions.^ 


id  E  thereupon.    And  the  said  E  after- 

irds,  on ,  there  heard  the  phiintiff  and 

e  said  D,  and  adjudged  upon  the  prem- 
;s,  and  awarded  that  the  said  D  should 

ly  to  the  plaintiff  a  balance  of on 

iinand,  and  publish  [and  notified  the  said 
irties  of]  the  same.  Yet,"  &c. 
The  following  form  is  proper,  where  the 
^cement  is  in  writing  without  seal,  and 
e  submission  is  to  three  persons,  with 
•wcr   in   any   two   to  make   an   award : 

For   that   whereas   on  there  were 

vers  controversies  between  the  plaintiff 
id  the  said  1)  concerning  their  mutual 
counts,  debts,  and  dealings,  and  there- 
)on  tliey  then,  by  their  mutual  agree- 
ent  in  writing,  submitted  and  referred 
id  controversies  [and  all  other  mutual 
;mands  between  them]  to  the  final  award 
id  determination  of  A,  B,  and  C,  and  in 
id  by  said  writing  further  agreed  [here 
'.  out  any  other  material  parts  of  the  agree- 
int]  that  the  award  of  the  said  A,  B,  and 
,  or  any  two  of  them  being  duly  made  in 
e  premises  [in  writing,  and  ready  to  be 
:livered  to  the  said  parties  or  either  of 

em  on  or  before, (or)  and  duly  no- 

ied  to  the  purties  as  the  case  may  have 
en\  should  be  binding  and  final ;  and  the 
aintiff  and  the  said  D  then  and  there 
utually  promised  each  other  to  stand  to, 
)iiie  i)y,  and  perform  the  award  so  made, 
nd  the  plaintiff  avers,  that  the  said  A, 
,  and  C,  afterwards  heard  the  plaintiff 
id  the  said  D  upon  all  the  matters  re- 
rred    to   them   as   aforesaid,   and   there- 

pon,  on the  said  [A  and  B,  two  of 

lid]  referees  [the  said  C  refusing  to  con- 
ir  therein]  made  and  published  their 
ward  [in  writing]  of  and  concerning  the 


premises,  [and  then  and  there  duly  no- 
tified the  said  parties  of  the  same]  and  did 
thereby  award  and  finally  determine,  that 
there  remained   a   balance  due  from  the 

said  D  to  the  plaintiff,  of to  be  paid 

to  the  plaintiff  [on  demand],  («&c.).  Yet," 
&c. 

The  account  in  covenant  contains  aver- 
ments similar  to  that  in  assumpsit. 

The  count  in  debt  on  an  award  is  as  fol- 
lows :  "  For  that,  whereas  the  said  D,  on 

was  indebted  to  the  plaintiff  in  the 

sum  of  ,  upon   and  by  virtue  of  an 

award  made  by  one  E,  on  a  submission  be- 
fore that  time  made  by  the  plaintiff  and 
the  said  D  to  the  award  and  determina- 
tion of  the  said  E,  concerning  certain  mat- 
ters in  difference  then  depending  between 
the  plaintiff  and  the  said  D,  and  upon 
which  said  reference  the  said  E  awarded 
that  the  said  D  should  pay  to  the  plaintiff 
the  sum  of  money  aforesaid,  upon  re- 
quest ;  whereby,  and  by  reason  of  the  non- 
payment whereof,  an  action  has  accrued 
to  the  plaintiff,  to  demand  and  have  of  and 
from  the  caid  D  the  sum  afoi'csaid.  Yet 
the  said  D  has  not  paid  the  same,  nor  any 
part  thereof.  The  damage,"  &c.  An 
allegation  of  mutual  promises  to  abide  the 
award  would  vitiate  this  declaration.  Sut- 
clift'e  V.  Brooke,  9  Jur.  1112 ;  14  M.  &  W. 
855 

1  1  Steph.  N.  P.  180.  In  those  of  the 
United  States,  in  which  the  damages, 
upon  default,  are  made  up  forthwith  by 
the  court,  or  by  a  jury  impanelled  on  the 
spot,  without  a  writ  of  inquiry,  this  mode 
of  remedy  does  not  seem  to  possess  any 
practical  advantage  over  others. 

2  Ferrer  v.  Oven,  7  B.  &  C.  472,  per 


60 


LAW   OF  EVIDENCE. 


[part  l\ 


§  71.  In  proving  an  award,  it  must  first  appear  that  the  arb: 
trators  had  sufficient  authority/  to  make  it.^  If  the  agreement  o 
submission  was  in  writing,  it  must  be  produced,  and  its  executio 
by  all  the  parties  to  the  submission  must  be  proved.^  Therefore 
where  four  persons,  being  copartners,  agreed  to  refer  all  matter 
in  difference  between  them,  or  any  two  of  them,  to  certain  arbitrt 
tors,  who  made  an  award  in  which  they  found  several  sums  due  t 
and  from  the  partnership,  and  also  divers  private  balances  du 
among  the  partners  from  one  to  another ;  in  an  action  betwee 
two  of  them  upon  the  award  to  recover  one  of  these  private  ba! 
ances,  it  was  held  necessary  to  prove  the  execution  of  the  deed  o 
submission  by  them  all  ;  the  execution  of  each  being  presumed  t 
have  been  made  upon  the  condition  that  all  were  to  be  boun 
equally  with  himself.^  If  the  submission  was  by  rule  of  court,  a 
office  copy  of  the  rule  will  be  sufficient  proof  of  the  judge's  oi 
der.*  But  if  the  agreement  of  submission  is  attested  by  wii 
nesses,  and  its  execution  is  denied ;  the  rule  or  order  by  whic 
the  agreement  was  made  a  rule  of  court  is  not  the  proper  evidenc 


Bayley,  J.  [An  award  under  a  general 
submission  in  writing,  whether  under  seal 
or  not,  of  all  disputes  between  A  and  B, 
that  A  shall  pay  certain  debts  of  B  to 
third  persons,  although  made  on  the  ex- 
press condition  that  A  shall  receive  cer- 
tain property  of  B,  will  not  support  an  ac- 
tion against  A  by  one  of  such  third  per- 
sons to  recover  a  debt  specified  in  the 
award.  Millar'd  v.  Baldwin,  3  Gray, 
484.] 

1  Antrara  v.  Chase,  15  East,  209.  An 
attorney  has  no  sufficient  authority  to  re- 
fer on  behalf  of  an  infant  plaiiitiif.  Bid- 
dell  V.  Dowse,  6  B.  &  C.  25.5.  Nor  has 
one  partner  authority  to  bind  the  firm. 
Stead  V.  Salt,  3  Bing.  101.  Proof  of  the 
submission  has  been  held  necessary  even 
after  the  lapse  of  forty  years.  Burghardt 
V.  Turner,  12  Pick.  534.  [Where  the 
submission  is  made  pursuant  to  a  statute, 
an  exact  compliance  with  the  provisions 
of  the  statute  is  necessary  to  give  eiftct  to 
the  statute  and  confer  a  jurisdiction  ;  and 
the  ajjpearance  before  the  referees  is  not  a 
waiver  of  exceptions  to  any  irregularity, 
affecting  the  jurisdiction.  Abbott  v.  Dex- 
ter, 6  Cush.  108;  Heath  v.  Tenney,  3 
Gray,  380  ;  Carpenter  i;.  Spencer,  2  Gray, 
407;  Henderson  y.  Adams,  5  Cush.  610; 
Low  V.  Nolte,  15  111.  368.  If  an  award  is 
recommitted  gcnerully,  the  authority  of 
the  arbitrator  is  not  restricted  by  such  re- 
couunitmcut  within  any  narrower  limits 


than  are  prescribed  by  the  original  sul 
mission.  French  v.  Richardson,  5  Cusl 
450.]  [*  After  the  drawing  of  a  referee 
report,  but  before  its  filing  or  deliver 
from  his  hands,  it  is  in  his  discretio 
again  to  open  the  case,  and  have  furth€ 
evidence  upon  due  cause  shown.  Coopc 
V.  Stinson,  5  Minn.  201.  But  see  Bayn 
V.  Morris ;  I  Wallace,  U.  S.  R.  97 ;  whei 
on  the  twenty-third  of  January  the  arb 
trators  made  an  award  and  on  the  twenty 
sixth  of  the  same  month  made  a  second  om 
And  the  court  said  the  award  of  the  twenty 
sixth  of  Jaimary  was  void.  "  Arbitrator 
exhaust  their  power  when  they  make 
final  determination  on  the  matters  sul 
mitted  to  them.  They  have  no  powc 
after  having  made  an  award  to  alter  it 
the  authority  conferred  on  them  is  thei 
at  an  end."] 

^  Ferrer  v.  Oven,  7  B.  &  C.  427. 

8  Antram  v.  Chase,  15  East,  209.  Se 
also  Brazier  v.  Jones,  8  B.  &  C  124.  [J 
submission  to  arbitration  whore  a  partner 
ship  is  a  party,  under  the  Mas.-achusett; 
Statute  (Itev.  Stat.,  c.  114),  must  shov 
who  are  members  of  the  firm  ;  and  if  sucl 
fact  do  not  appear  in  the  submission,  or  ii 
the  award,  the  court  to  which  the  award  i 
returned  cannot  hear  and  determine  tha 
question.  Wesson  v.  Newton,  10  Cush 
114.] 

*  Still  V.  Halford,  4  Campb.  17;  Gia 
borno  v.  Hart,  5  M.  &  W.  50. 


LRT  IV.]  ARBITRATION  AND  AWARD.  61 

the  signature  of  the  agreement,  but  it  must  be  proved  by  the 
testing  witnesses.^ 

§  72.  If  the  submission  was  bt/  parol,  it  is  material  to  prove  not 
ily  that  both  parties  promised  to  abide  by  the  award,  but  that 
e  promises  were  concurrent  and  mutual ;  for  otherwise  each 
omise  is  but  nudum  pactum.'^ 

§  73.  If  the  award  was  made  by  an  umpire,  his  appointment 
ust  also  be  proved.  The  recital  of  his  authority  in  the  award 
;ned  by  himself  and  the  arbitrators  is  not  sufficient.^  He  can- 
>t  be  selected  by  the  arbitrators  by  lot,  without  consent  of  tlie 
.rties.*  His  appointment  will  be  good,  though  made  before  the 
bitrators  enter  on  the  business  referred  to  them  ;  ^  and  they 
ay  well  join  with  him  in  making  the  a  ward. ^  And  if  the  arbi- 
ators  appoint  an  umpire  without  authority,  yet,  if  the  parties 
)pear  and  are  heard  before  him  without  objection,  this  is  a  ratifi- 
ition  of  his  appointment.'^ 

§  74.    The  next  point  in  the  order  of  evidence  is  the  execution 

the  award;  which  must  be  proved,  as  in  other  cases,  by  the 

bscribing  witness,  if  there  be  any,  and  if  not,  then  by  evidence 

the  handwriting  of  the  arbitrators.^     If  the  award  does  not 

^  Berney  u.  Bead,  9  Jur.  620 ;  7  Ad.  &  El.  Taunt.  232.     [*"An  umpire  is  a  person 

,  N.  S.  whom  two  arbitrators,  appointed  and  duly 

^  Keep  ».  Goodrich,  12  Johns.  .397  ;  Liv-  authorized  by  parties,  select  to  decide  the 

;ston  V.  Rogers,  1   Caines,  583 ;  Kings-  matter  in  controversy,  concerning  which 

1  V.  Phelps,  Peake's  Gas.  227.    An  arbi-  the  arbitrators  are  unable  to  agree.     His 

.tor  is  a  competent  witness  to  prove  the  province  is  to  determine  the  issue  submit- 

itters  submitted  to  arbitration,  and  the  ted  to  the  arbitrators  on  which  they  liave 

ard  made  thereon.      Allen  v.  Miles,  4  failed   to   agree,  and   to   make  an   award 

irringt.  234.     And  see  Graham  v.  Gra-  thereon,  which  is  his  sole  award.     Neither 

m,  9  Barr.  254.    [See  po-s^,  §  78;  Hough-  of  the  original  arbitrators  is  required  to 

1  V.  Houghton,  37  Maine,  72 ;  Ennos  v.  join  in  the  award,  in  order  to  make  it  valid 

att,  26  Vt.  630.]  and  binding  on  the  parties.    In  the  absence 

*  Still  V.  Halford,  5  Campb.  18.  Nor  is  of  any  agreement  or  assent  by  the  parties 
:h  recital  necessary.  Semble,  Rison  v.  to  the  controversy,  dispensing  with  a  full 
irry,  4  Rand.  275. J  hearing  by  the  umpire,  it  is  his  duty  to  hear 
'  Young  V.  Miller,  3  B.  &  C.  407 ;  Wells  the  whole  case,  and  to  make  a  distinct  and 
Cooke,  2  B.  &A.  218;  Harris  y.  Mitch-  independent  award  thereon,  as  the  result 
,  2  Vern.  485;  In  re  Cassell,  9  B.  &  C.  of  his  judgment.     He  stands,  in  fact,  in  the 

4  (overruling  Neale  v.  Ledger,  16  East,  same  situation  as  a  sole  arbitrator,  and  he 
) ;  Ford  v.  Jones,  3  B.  &  Ad.  248.  is  bound  to  hear  and  determine  the  case,  in 
Emopean  and  Amer.  Steamship  Co.  ».  like  manner  as  if  it  had  been  originally  sub- 
osskey,  8  C.  B.,  N.  S.397;   S.  C.  6  Jur.  mitted  to  his  determination." — Bigelow, 

S.  896.]     But  if  the  parties  agree  to  a  C.  J.  Haven  v.  Winnisimmet  Company,  11 

ection  by  lot,  it  will  be  good.     In  re  Allen,  384.] 

inno,  5  B.  &  Ad.  488.  ^  Matson  v.  Tower,  Ry.  &  M.  17  ;  Nor 

5  Roe  d.  Wood  v.  Doe,  2  T.  R.  644 ;  ton  v.  Savage,  1  Fairf.  456. 

ites  y.  Cooke,  9  B.  &  C.  407  ;  McKinstry         8  ^„te,  Vol.   1,  §  569-581.     [A  paro) 

Solomons,  2  Johns.  57  ;  Van  Cortlandt  award  is  sufBcient,  though  the  submission 

Underbill,  17  Johns.  405.  is  in  writing,  if  it  does  not  require  the 

*  Soulsby  V.  Hodgson,  3  Burr.  1474;  1  award  to  be  in  writinj?.  Goodell  v.  Ray- 
".  B).  463    S.  C. ;   Beck  v.  Sargent,  4  mond,  1  WiUiams  (Vt.),  241]. 


62 


LAW   OF  EVIDENCE. 


[part  IV 


pursue  the  submission,  it  is  inadmissible.  If,  therefore,  the  submis-' 
sion  be  to  several,  without  any  authority  in  the  majority  to  decide, 
and  the  award  is  not  signed  by  all,  it  is  bad.^  And  though  a  ma- 
jority have  power  to  decide,  yet,  in  an  award  by  a  majority  only, 
it  must  appear  that  all  the  arbitrators  heard  the  parties,  as  well 
those  who  did  not,  as  those  who  did  concur  in  the  decision.^  It 
will  be  presumed  that  all  matters,  included  within  the  terms  of 
the  submission  were  laid  before  the  arbitrators,  and  by  them  con- 
sidered ;  but  this  presumption  is  not  conclusive,  evidence  being 
admissible  to  prove  that  a  particular  matter  of  claim  was  not  in 
fact  laid  before  them,  nor  considered  in  their  award. ^ 

§  75.  If  the  submission  required  that  notice  of  the  aivard  should 
be  given  to  the  parties,  this  notice,  as  it  must  in  that  case  have 
been  averred  in  the  declaration,  is  the  next  point  to  be  proved ; 
but  if  it  was  not  required  by  the  submission,  both  the  averment 
and  the  proof  are  superfluous.*  It  is  essential,  however,  to  allege, 
and  therefore  to  prove,  that  the  award  was  i^uhlished ;  ^  and  an 
award  is  published  whenever  the  arbitrator  gives  notice  that  it 


1  Towne  v.  Jaquith,  6  Mass.  46;  Bal- 
timore Turnp.  case,  4  Biiin.  481  ;  Cro- 
foot  V.  Allen,  2  Wend.  494  ;  [French  v. 
Kichardson,  5  Gush.  4n0  ;  Quimby  v.  Mel- 
vin,  8  Foster  (N.  H.),  250.] 

2  Short  V.  Pratt,  6  Mass.  496  ;  "Walker 
V.  Melcher,  14  Mass.  148.  But  upon  a 
rehearing,  if  one  of  the  arbitrators  refuses 
to  attend,  the  others  are  competent  to  re- 
affirm the  former  award ;  Peterson  v. 
Loring,  1  Greenl.  64  ;  though  not  to  revise 
the  merits  of  the  case.  Cumberland  v. 
North  Yarmouth,  4  Greenl.  459  ;  [Maynard 
V.  Frederick,  7  Gush.  247.]  [*  In  Bulson 
c.  Lohnes,  29  N.  Y.  291,  where  the  submis- 
sion was  to  three  arbitrators,  with  a  pro- 
vision that  the  award  should  lie  in  writing, 
signed  by  the  three,  "  or  any  two  of  them," 
and  r'^ady  for  delivery  by  a  certain  day 
fixed,  Johnson,  J.,  says  :  "  There  can  be  no 
doubt,  that,  at  common  law,  before  the  re- 
vised statutes,  under  such  a  submission, 
two  arbitrators  might  lawfully  meet,  and 
hear  the  jjroofs  and  allegations  of  the  par- 
ties, where  the  third  had  notice,  and  re- 
fused to  attend  and  take  part  in  the  pro- 
ceedings ;  and  that  an  award  made  by  the 
two  who  heard  the  matters  submitted,  un- 
der such  circumstances,  was  a  valid  and 
binding  award.  This  was  settled  in  Eng- 
land, at  an  early  day,  and  upon  full  delib- 
eration. (Goodman  v.  Sayrcs,  2  Jac.  & 
Walk,  261  ;  Delling  v.  Matchett,  Willis 
215  ;  S.  G.  Barnes,  57  ;  Sallows  v.  Girling, 
Cro    Jac.  278;    Watson  on  Arbitration. 


115  ;  Kyd  on  Awards,  106  -  107  ;  Green  » 
Miller,  6  Johns.  39  ;  Crofoot  r.  Allen,  2 
Wend.  495.)  It  was  held,  that,  by  the  lat- 
ter clause  of  the  submission,  the  entire 
authority  was  disjoined,  so  as  to  make  it  a 
submission  to  the  lesser  number  to  hear,  as 
well  as  to  determine."] 

^  Martin  v.  Thornton,  4  Esp.  180; 
Ravee  v.  Farmer,  4  T.  R.  146  ;  Webster  v. 
Lee,  5  Mass.  .334;  Hodges  v.  Hodges,  9 
Mass.  320;  Smith  v.  Whiting,  11  Mass. 
445  (Rand's  ed.),  and  cases  cited  in  note  (a); 
Bixby  V.  Whitney,  5  Greenl.  192;  [Post, 
§  78;  Tallraan  v.  Tallman,  5  Gush.  325.J 
[*  All  reasonable  presumptions  should  be 
made  in  favor  of  an  award,  as  much  as  in 
favor  of  a  judgment.  And  it  is  incum- 
bent upon  the  party  objecting  to  the  legal- 
ity  of  an  award  to  show  clearly  the  fact  of 
its  illegality.  Kendrick  v.  Tarbell,  26  Vt. 
422;  Sperry  v.  Kicker,  4  Allen,  17-19. 
See  Veghte  v.  Hoagland,  5  Dutch.  125,  in 
which  it  is  held,  that  an  award  properly 
made,  in  pursuance  of  the  authority  con- 
ferred on  the  arbitrators,  is  conclusive  as  to 
all  matters  to  which  the  submission  ex- 
tends, whether  any  particular  matter  in- 
cluded in  the  submission  was  laid  bcfora 
the  arbitrators  or  not;  and  Edwards  v. 
Stevens,  1  Allen,  315,  contra.] 

*  Juxon  V.  Thornhill,  Cro.  Car.  132; 
Child  V.  Horden,2  Bulstr.  144;  2  Saund. 
62  a,  note  (4),  by  Williams. 

°  Kingsley  v.  Bill,  9  Mass.  198  ;  [Thomp- 
son V.  Mitchell,  35  Maine,  281.) 


aet'iv.]  arbitration  and  award.  63 

aay  be  held  on  payment  of  his  charges.^  If  the  agreement  is  that 
lie  award  shall  be  ready  to  be  delivered  to  the  parties  by  a  certain 
^ay,  this  is  satisfied  by  proof  of  the  delivery  of  a  copy  of  the  award, 
[■  it  be  accepted  without  objection  on  that  account ;  ^  and  if  it  be 
nly  read  to  the  losing  party,  who  thereupon  promises  to  pay  the 
um  awarded,  this  is  sufficient  proof  of  the  delivery  of  the  award, 
r  rather  is  evidence  of  a  waiver  of  his  right  to  the  original  or  a 
opy,  even  though  it  was  afterwards  demanded  and  refused.^ 

§  76.  It  is  not  necessary  to  allege,  nor,  of  course,  to  prove  a 
\emand  of  payment ;  except  where  the  obligation  is  to  pay  a  col- 
iteral  sum  upon  request,  as,  where  the  defendant  promised  to 
ay  a  certain  sum  upon  request,  if  he  failed  to  perform  an  award ; 
11  which  case  an  actual  request  must  be  alleged  and  proved.  In 
11  other  cases,  where  the  award  is  for  money,  which  is  not  paid, 
lie  burden  of  proof  is  on  the  defendant,  to  show  that  he  has  paid 
lie  sum  awarded,  the  bringing  of  the  action  being  a  sufficient  re- 
uest.*  The  averment  of  a  promise  to  pay,  will  be  supported  by 
vidence  of  an  agreement  to  abide  by  the  decision  of  the  arbitra- 
3rs.^ 
§  77.  Where  the  thing  to  be  done  by  the  defendant  depends  on 
condition  precedent,  to  be  performed  by  the  plaintiff,  such  per- 
Drmance  must  be  averred  and  proved  by  the  plaintiff.  And  if  by 
lie  terms  of  the  award,  acts  are  to  be  done  by  both  parties  on  the 
ame  day,  as,  where  one  is  to  convey  land,  and  the  other  to  pay 
lie  price,  there,  in  an  action  for  the  money,  the  plaintiff  must 
ver  and  prove  a  performance,  or  an  offer  to  perform,  on  his  part, 
r  he  cannot  recover ;  for  the  conveyance,  or  the  offer  to  convey, 
I'om  the  nature  of  the  case,  was  precedent  to  the  right  to  the 
rice.^ 

1  McArthur  v.  Campbell,  5  B.  &  Ad.  ment  to  be  made  at  a  certain  time  and 

18;    Musselbrook    v.   Dunkin,    9    Bing.  place,  this   direction   may  be  rejected   aj 

35.     See  also  Munroe  y.  Allaire,  2  Caines,  surplusage.     Rees  v.  Waters,  4  D.  &  L. 

20.  567  ;   16  M.  &  W.  263. 

-  Sellick  V.  Adams,  15  Johns.  197  ;  [Low  ^  Efner  v.  Shaw,  2  Wend.  567. 

Nolte,  16  111.  475.]    In  strictness,  to  con-  ^  jjay  u.  Brown,  12  Wend.  591;   [Nel 

;itnte  the  proper  service  of  an  award,  so  son  v.  Clough,  3  Cush   463.      Where  an 

5  to  authorize  an  attachment  for  not  per-  award  directed  A.  to  sign,  seal,  and  delivei 

>rming  it,  a  copy  must  not  only  be  deliv-  a  deed  "  forthwith"  to  B.,  though  it  ap- 

•ed,  but  the  original  must  also,  at   the  peared  on  the  face  of  the  award  that  the 

ime  time,  be  shown  to  the  party.     Loyd  execution  of  that  deed  depended  on  the 

Harris,  8  M.  G.  &  Sc.  63.  prior  execution  of  another,  it  is  not  bad ; 

^  Perkins  v.  Wing,  19  Johns.  143.  the  word  "forthwith"  meaning  as  soon  as 

*  Birks  V.  Trippet,  1  Gaund.  32,  33,  and  B.  should  be  in  a  condition  to  call  on  A.  to 

ote  (2),  by  Williams.     If  the  reference  is  execute.     Bluck  v.  Boyes,  22  Eng.  Law  i> 

eneral,  and  the  arbitrator  directs  the  pay-  Eq.  503.] 


64 


LAW   OF   EVIDENCE. 


[part  IV. 


§  78.  In  defence  of  an  action  on  an  award,  or  for  not  performing 
an  award,  the  defendant  may  avail  himself  of  any  material  error 
or  defect,  apparent  on  the  face  of  the  award  ;  such  as  excess  of 
power  by  the  arbitrators;^  defect  of  execution  of  power,  as,  by 
omitting  to  consider  a  matter  submitted  ;  ^  want  of  certainty  to  a 
common  intent ;  ^  or  plain  mistake  of  law,  as,  allowing  a  claim  of 
freight,  where  the  ship  had  never  broken  ground  ;*  and  the  like. 
In  regard  to  corruption  or  other  misconduct  or  mistake  of  the 
arbitrators  in  making  their  award,  the  common  law  seems  not  to 
have  permitted  these  to  be  shown  in  bar  of  an  action  at  law  for 
non-performance  of  the  award  ;  but  the  remedy  must  be  pursued 
in  equity.^     But  in  this  country,  in  those  States  where  the  juris- 


1  Morgan  v.  Mather,  2  Ves.  1 8 ;  Fisher 
r.  Pimbley,  11  East,  189;  Macomb  v.  Wil- 
ber,  16  Johns.  227  ;  Jackson  v.  Ambler,  14 
Johns.  96.  See  also  Commonwealth  v.  Pe- 
jepscot  Propr's,  7  Mass.  399.  [*  It  is  not 
ultra  vires  of  an  arbitrator  to  remit  to  an 
expert.  He  may  consult  men  of  science, 
or  call  in  a  valuer  to  assist  hira,  unless  pro- 
hibited by  the  terms  of  the  submission. 
Caledonian  R.  Co.  v.  Lockhart,  3  Macq. 
H.  L.   Cas.  808.] 

2  Mitchell  V.  Stavely,  16  East,  58;  Bean 
V.  Parnam,  6  Pick.  269.  But  not  unless  the 
omission  is  material  to  the  award.  Davy  v. 
Faw,  7  Cranch,  171 ;  Harper  v.  Hough,  2 
Halst.  187;  Doe  v.  Horner,  8  Ad.  &  El. 
235.  [An  award  of  referees  under  a  rule 
of  court,  that  each  party  pay  his  own  costs, 
and  that  the  defendant  pay  to  the  plaintiff 
ten  dollars  as  the  defendant's  share  of  the 
referee's  fees,  is  a  sufficient  determination 
of  the  matter  submitted.  Stickles  v.  Ar- 
nold, 1  Gray,  418.  An  award  in  part  void 
because  beyond  the  submission,  is  not 
wholly  invalid,  if  the  void  part  is  clearly 
independent  of  the  remainder,  and  forms  no 
part  of  the  consideration  therefor.  Bar- 
rows V.  Capen,  11  Cush.  37;  Maynard  v. 
Frederick,  7  Cush.  252.  See  also  Johnson 
V.  Knowlton,  35  Maine,  467  ;  Smith  v.  Pot- 
ter, 1  Williams  (Vt.).,  304.] 

8  Jackson  v.  Ambler,  14  Johns.  96 ; 
[Clark  V.  Burt,  4  Cu.sh.  396  ;  Ross  v.  Clif- 
ton, 9  Dowl.  Prac.  Cas.  360.]  [*  An  award 
defining  a  boundary  will  be  defeated  by 
proof  that  there  were  no  such  monuments 
as  are  referred  to  in  the  award,  for  the  pur- 
pose of  locating  the  boundary.  But  a  want 
of  certainty  in  the  award  in  this  respect 
alone  will  not  affect  another  portion  of  the 
same  award,  determining  that  one  party 
had  trespassed  upon  the  land  of  the  other, 
and  awarding  to  the  latter  party  his  dam- 
ages and  costs,  though  the   trespass  was 


upon  the  same  land  to  which  the  disputed 
boundary  had  reference.  Giddings  v.  Had- 
away,  28  Vt.  342.  An  award  is  not  valid 
which  provides  for  the  payment,  by  one  of 
the  parties  to  the  submission,  of  a  certain 
sum,  after  making  deductions  therefrom  of 
sums  not  fixed  by,  or  capable  of  being  as- 
certained from,  the  award.  Fletcher  v- 
Webster,  5  Allen,  566.  In  Waite  v.  Barry, 
12  Wend.  377,  Sutherland,  J.,  said  :  "  It  is 
essential  to  the  validity  of  an  award,  that 
it  should  make  a  final  disposition  of  the 
matters  embraced  in  the  submission,  so  that 
they  may  not  become  the  subject  or  occa- 
sion of  future  litigation  between  the  par- 
ties. It  is  not  indispensable,  that  the  award 
should  state,  in  words  or  figures,  the  pre- 
cise amount  to  be  paid.  If  nothing  re- 
main to  be  done,  in  order  to  render  it  cer- 
tain and  final,  but  a  mere  ministerial  act, 
or  an  arithmetical  calculation,  it  will  be 
good."  Wakefield  v.  Llanelly  Railway  & 
Dock  Company,  11  Jur.  N.  S'  456  ;  Tids- 
well  in  re,  33  Beav.  213  ;  Ellison  v.  Bray,  9 
L.  T.  N.  S.  730.] 

*  Kelly  V.  Johnson,  3  Wash.  R.  45.  See 
also  Gross  v.  Zorger,  3  Yeates,  521  ;  Ross 
V.  Overton,  3  Call,  309  ;  Morris  i;.  Ross,  2 
H.  &  M.  408  ;  Greenough  v.  Kolfe,  4  N  H. 
357  ;  Ames  v.  Milward,  8  Taunt.  637. 

^  Watson  on  Arbitrations,  p.  153,  in  11 
Law  Lib.  79 ;  Shepherd  v.  Watrous,  3 
Caines,  166;  Barlow  >'.  Todd,  3  Johns. 
367  ;  Cranston  v.  Kennedy,  9  Johns.  212; 
Van  Cortlandt  v.  Underbill,  17  Johns.  405 ; 
Kleine  v.  Catara,  2  Gallis.  61  ;  Sherron  v. 
Wood,  5  Halst.  7  ;  Newland  v.  Douglas,  2 
Johns.  62.  In  practice,  where  no  suit  is 
pending,  arbitrations  are  now  generally 
entered  into  under  the  statutes,  enacted  for 
the  purpose  of  making  the  submission  a 
rule  of  court  ;  and  in  all  cases  where  the 
submission  is  made  a  rule  of  court,  the 
court  will  generally  administer  relief,  wher- 


PART  IV.] 


ARBITRATION   AND   AWARD. 


diction  in  equity  is  not  general,  and  does  not  afford  complete 
relief  in  such  cases,  it  has  been  held,  that  if  arbitrators  act  cor- 
ruptly, or  commit  gross  errors  or  mistakes  in  making  their  award, 
or  take  into  consideration  matters  not  submitted  to  them,  or  omit 
to  consider  matters  which  were  submitted,  or  the  award  be  ob- 
tained by  any  fraudulent  practice  or  suppression  of  evidence  by 
the  prevailing  party,  the  defendant  may  plead  and  prove  any  of 
these  matters  in  bar  of  an  action  at  law  to  enforce  the  award. ^ 
And  though  arbitrators,  ordinarily,  are  not  bound  to  disclose  the 
grounds  of  their  award,^  yet  they  may  be  examined  to  prove  that 
no  evidence  was  given  upon  a  particular  subject ;  ^  or,  that  cer- 
tain matters  were  or  were  not  examined,  or  acted  on  by  them,  or 
that  there  is  mistake  in  the  award  ;  *  and  also  as  to  the  time  and 
circumstances  under  which  the  award  was  made,^  and  as  to  any 
facts  which  transpired  at  the  hearing.^  Fraud  in  obtaining  the 
submission  may  be  given  in  evidence  under  the  plea  of  non- 
assumpsit,  or  nil  debet,  by  the  common  law.'^ 

[*  We  think  it  has  generally  been  considered,  in  courts  of  law. 


ever  it  could  be  administered  in  equity. 
[*  Upon  a  conceded  error  in  the  amount 
of  an  arbitrator's  report,  the  surplus  may 
be  remitted,  and  judgment  entered.  Mc- 
Cready  ».  Woodliull,  34  Barb.  80. 

1  Bean  v.  I'arnam,  6  Pick.  269 ;  Brown 
V.  Bellows,  4  rick.  18.3  ;  Parsons  v.  Hall,  3 
Greenl.  60;  The  Boston  Water  Power  Co. 
V.  Gray,  6  Mete.  131  ;  Williams  v.  Paschall, 
3  Yeates,  .564  ;  [Strong  v.  Strong,  9  Gush. 
560 ;  Lincoln  v.  Taunton  Copper  Manuf. 
Co.,  8  lb.  415  ;  Leavittr.  Comer,  5  lb.  129; 
French  v.  Richardson,  lb.  450;  Briggs  v. 
Smith,  20  Barb.  (N.  Y.),  409;  French  v. 
New,  lb.  481  ;  Taylor  v.  Sayre,  4  Zabr. 
647  ;  Tracy  v.  Herrick,  5  Foster  (N.  H.), 
381.  See  also  Morgan  v.  Smith,  9  Mees. 
&  W.  427  ;  Angus  v.  Redford,  11  lb.  69 ; 
Cramp  v.  Adney,  3  Tyrwhitt,  370.  An 
award  made  in  pursuance  of  a  reference 
under  a  rule  of  court,  will  not  be  set  aside 
for  alleged  mistakes  of  law  on  the  part  of 
the  referees,  unless  they  have  themselves 
been  misled,  or  unless  they  refer  questions 
of  law  to  the  court.  Fairchild  v.  Adams, 
11  Cush.  548  ;  Bigelow  v.  Newell,  10  Pick. 
348.  When  all  claims  and  demands  be- 
tween the  parties  are  submitted  to  arbitra- 
tion»it  will  be  intended  that  the  arbitrators 
have  decided  all  matters  submitted  to  them, 
although  they  do  not  so  state  in  their  award, 
unless  the  contrary  appears.  Tallman  v. 
Tall  man,  5  Cush.  325.  [*  Clement  v.  Cora- 
stock,  2  Mich.  359.]  An  award  made 
twelve  years  after  the  submission  is  invalid, 

VOL.  II.  5 


unless  suflScient  reason  is  shown  for  the  de- 
lav.  Hook  V.  Philbrick,  3  Foster  (N.  H.), 
288]. 

•^  Ante,  Vol.  1,  §  249. 

3  Martin  v.  Thornton,  4  Esp.  180. 

*  Hoop  V.  Bruhacker,  1  Rawle,  304 ;  Al- 
der V.  Savill,  5  Taunt.  454  ;  Zciglcr  v. 
Zeigler,  2  S.  &  R.  286.  If,  upon  a  submis- 
sion of  "  all  matters  in  ditleience,"  the 
parties  omit  to  call  the  attention  of  the 
arbitrator  to  a  matter  not  necessarily  be- 
fore him,  they  cannot  object  to  the  award 
on  the  ground  that  he  has  not  adjudicated 
upon  it.  Rees  v.  Waters,  16  M.  &  W. 
263.  [*  A  new  trial  will  not  be  ordered 
before  referees  on  the  discovery  of  new 
evidence  which  is  cumulative  merely,  and 
not  controlling,  in  its  character.  Bowen  v. 
Steerc,  6  Rhode  I.  251 ;  McDaniels  v.  Van 
Fosen,  11  Iowa,  195.] 

5  Woodbury  v.  Northy,  3  Greenl.  85, 
[Strong  V.  Strong,  9  Cush.  560;  Lincoln 
V.  Taunton  Manuf.  Co.,  8  lb.  415.] 

6  Gregoryv.  Howard,  3  Esp.  113.  [*The 
testimony  of  referees  is  admissible  to  iden- 
tify matters  submitted  to  them,  and  to 
show  that  they  acted  on  them ;  but  a  writ- 
ten submission  or  award  cannot  be  varied 
or  explained  by  parol.  Buck  v.  Spofford, 
35  Maine,  526.  Declarations  by  an  arbi- 
trator, some  days  after  making  and  pub- 
lishing his  award,  are  incompetent  to  im- 
peach it,  Hubbell  v.  Bissell,  2  Allen, 
196.] 

7  Sackett  v.  Owen,  2  Chitty,  B.  39. 


66  LAW   OF   EVIDENCE.  [PART  IV. 

that  all  defences  to  awards,  where  the  submission  and  award  were  in 
writing  and  under  seal,  for  matters  not  apparent  upon  the  papers, 
must  be  pursued  in  equity.  And  this  rule  has  been  considered 
to  rest,  as  to  mistake  of  the  arbitrators,  and  irregularity  of  con 
duct  by  them,  upon  the  same  ground  that  courts  have  refused  tc 
set  aside  a  written  contract  between  parties  in  a  trial  at  law,  upon 
the  alleged  grounds  that,  by  mistake,  the  contract  did  not  read 
as  it  was  intended  to.  And,  in  regard  to  the  conduct  of  the  arbi- 
trators, it  has  been  considered,  in  some  of  the  cases  certainly,  that 
the  arbitrators  were  necessary  parties  to  any  proceedings  based 
upon  such  a  charge.  Mere  mistakes,  or  irregularity,  short  of 
positive  corruption,  might  not  require  any  explanation  at  the 
hands  of  the  arbitrators.  And  it  is  difficult  to  perceive  how,  in 
any  case,  they  are  proper  parties  to  a  litigation,  in  regard  to  the 
validity  of  the  award,  and  we  doubt  whether,  upon  principle,  any 
corruption  in  the  arbitrator  or  judge,  unless  with  the  procure- 
ment or  privity  of  the  prevailing  party,  is  any  defence  to  an 
award,  in  a  court  of  law.  And  if  the  corruption  of  the  arbitra- 
tor be  with  the  privity  of  the  party,  it  is  fraud,  and  is  equally  a 
defence  at  law,  and  in  equity,  as  well  as  to  specialties  as  simple 
contracts.  But  we  do  not  say  this  is  yet  determined  as  to 
awards. 1] 

§  79.  The  defendant  may  also  show,  that  the  authority  of  the 
arbitrators  was  revoked  before  the  making  of  the  award.  And  the 
death  of  either  of  the  parties  to  a  submission  at  common  law,  be- 
fore the  award  made,  will  amount  to  a  revocation ;  ^  unless  it  is 
otherwise  provided  in  the  submission.^     Whether  bankruptcy  is  a 

[*iSee  Woodrow  v.  O'Connor,  28  Vt.  403;   10  Jur.  N.  S.  704;  Proctor  v.  Wil- 

7,76.     An  award  which  is  operative  as  a  liams,    8    C.    B.   N.    S.   386 ;    Angus    v. 

final  and  conclusive  adjustment  of  all  mat-  Smythies,  2  F.  &  F.  381.     It  seems  that 

ters  between  the  parties,  is  not  vitiated  by  arbitrators   may  decline   to  hear  counsel, 

an  order  requiring  them  to  execute  mutual  Macqueen,  in  re,  9  C.  B.  N.  S.  793.] 

releases.     Shepherd  v.  Briggs,  28  Vt.  81.  ^  Edmunds  v.  Cox,  2  Tidd's  Pr.  877  ;  3 

An  award  is  rightly  rejected,  if,  previously  Doug.  406,  S.  C. ;  2  Chitty,  R.  422,  S.  C. ; 

to  the  selection  of  the  arbitrators,  a  portion  Cooper  v.  Johnson,  2  B.  &  Aid.  394  ;  Potts 

of  them  made  an  ex  parte  examination  of  ?;.  Ward,  1  Marsh.  366  ;  Toussaint  v.  Hai'- 

the  matter  afterwards  submitted  to  thera,  top,  7  Taunt.  571.     But  if  the  submission 

at  the  request  of  one  of  the  parties  to  whom  is  under  a  rule  of  court,  and  the  action  sur- 

the  substance  of  the  result  at  which  they  vives,  it  is  not  revoked  by  death.     Bacon  v. 

arrived  was  known,  and  these  facts  were  Crandon,  15  Pick.  79. 

not  communicated  to  the  other  party.     So  '^  Macdougall  v.  Robertson,  2  Y.«&  J, 

also  if  they  decided  upon  the  matters  sub-  11  ;  4  Bing.  435,  S.  C.     [*  But  not  where 

mitted  to  them  before  giving  notice  of  a  the  arbitrator  is  in  the  situation  of  a  pensoa 

hearing  to  one  of  the  parties.     Conrad  v.  appointed  by  vendor  and  purchaser  to  fix 

Massasoit  Insui-ance  Co.,  4  Allen,  20.    See  the    value   and   price   of   an   estate   sold. 

Wilson  u.  Concord  Railroad  Company,  3  Caledonian   Railway   Co.  v.  Lockhart,  3 

Allen,  194.     See  Tidswell  in  re,  33  Beav.  Macq.  H.  L.  Cas.  808.1 
213;  Brook  et  ala    in  re,  15  C.  B.  N.  S. 


PART  IV.J 


ARBITRATION   AND   AWARD. 


6T 


revocation,  is  not  clearly  settled.^  Where  the  submission  is  at 
common  law,  and  even  where  it  is  under  the  statute,  but  is  not  yet 
made  a  rule  of  court,  it  seems  that  either  party  may  revoke  the 
authority  of  the  arbitrators  ;  though  he  may  render  himself  liable 
to  an  action  for  so  doing.^  But  if  the  submission  is  by  two,  a 
revocation  by  one  only  is  void.^  If  the  reference  is  made  an  order 
of  a  court  of  equity,  the  revocation  of  the  authority  of  the  arbitra- 
tors is  a  high  contempt  of  the  court,  and  upon  application  of  the 
other  party,  will  be  dealt  with  accordingly .^  If  a  feme  sole,  hav- 
ing entered  into  a  submission  to  arbitration,  takes  husband,  the 
marriage  is  a  revocation  of  the  submission  ;  but  it  is  also,  like 
every  other  revocation  by  the  voluntary  act  of  the  party,  a  breach 
of  the  covenant  to  abide  by  the  award.^ 

§  80.  The  defendant  may  also  show,  in  defence,  that  one  or 
more  of  the  parties  to  the  submission  was  a  minor,  or  a  feme 
covert,  and  that  therefore  the  submission  was  void  for  want  of  mu- 
tuality.^ So,  he  may  show  that  the  arbitrators,  before  making 
their  award,  declined  that  office ;  for  thereupon  they  ceased  to  be 
arbitrators^ 

§  81.  Where  the  action  is  assumpsit  upon  a  submission  hy  parol^ 
the  plea  of  non-assumpsit,  where  it  is  not  otherwise  restricted  by 


1  Marsh  v.  "Wood,  9  B.  &  C.  649 ;  An- 
drews V.  Palmer,  4  B.  &  Aid.  450 ;  Ex  parte 
Remshead,  I  Rose,  149. 

2  Skee  V.  Coxon,  10  B.  &  C.  483 ;  Milne 
V.  Gratrix,  7  East,  608 ;  Clapliam  v.  Hig- 
ham,  1  Bing.  227 ;  7  Moore,  70.3 ;  Green- 
wood V.  Misdale,  1  McCl.  &  Y.  276  ;  Brown 
V.  Tanner,  lb.  464;  1  C.  &  P.  651,  S.  C. ; 
Warburton  v.  Storer,  4  B.  &  C.  103;  Vy- 
nior's  case,  8  Co.  162  ;  Frets  v.  Frets,  1 
Cow.  335;  Allen  v.  Watson,  16  Johns. 
30.1 ;  Fisher  v.  Pimbley,  11  East,  187; 
Peters  v.  Craig,  6  Dana.R.  307  ;  Marsh  v. 
Bulteel,  5  B.  &  Aid.  507 ;  Grazebrook  v. 
Davis,  5  B.  &  C.  534,  538 ;  Brown  v.  Lea- 
vitt,  13  Shepl.  251  ;  Marsh  v.  Packer,  5 
Washb.  198. 

8  Robertson  v.  McNeill,  12  Wend.  578. 

*  Haggett  V.  Welsh,  1  Sim.  134;  Har- 
court  c.  Rarasbottom,  1  Jac.  &  Walk. 
511. 

s  Chamley  v.  Winstanley,  6  East,  266 ; 
Andrews  v.  Palmer,  4  B.  &  Aid.  252. 

6  Cavendish  v. ,  1   Chan.  Cas.  279 ; 

Bidden  v.  Dowse,  G  B.  &  C.  255.  But  it 
is  not  a  good  objection,  that  one  was  an 
executor  or  administrator  only,  for  he  has 
authority  to  submit  to  arbitration.  Coffin 
F.  Cottle,  4  Pick.  454 ;  Bean  v.  Farnam,  6 
Pick.  269 ;  Dickey  v.  Sleeper,  13  Mass.  244. 


T  Relyea  v.  Ramsav,  2  Wend.  602  ;  Al- 
len V.  Watson,  16  Johns.  203.  [*  In  debt 
upon  an  award  of  arbitrators,  it  is  proper 
to  show  by  pai'ol,  under  the  general  issue, 
that  the  arbitrators  had  no  power  to  make 
and  publish  their  award  at  the  time  and  in 
the  manner  they  did  ;  and,  therefore,  under 
that  plea,  the  question  may  be  raised, 
whether  an  award  is  valid  which  was  made 
on  Sunday  morning,  after  a  hearing  com- 
pleted just  before  twelve  o'clock  on  Satur- 
day night,  and  parol  evidence  may  be  in- 
troduced to  show  that  it  was  so  made.  A 
judgment  rendered  on  Sunday  is  void  at 
common  law ;  but  an  award  is  not  a  judg- 
ment, but  the  consummation  of  a  contract 
between  the  parties  to  tlie  submission  ;  and 
if  the  submission  make  no  provision  for  an 
award  on  Sunday,  and  the  parties  complete 
the  hearing  before  the  arbitrators  previous 
to  twelve  o'clock  on  Saturday  night,  and 
then  cease  to  exercise  any  control  as  to  the 
time  of  making  the  award,  its  validity  as 
to  them  will  not  be  affected,  either  at  com- 
mon law,  or  under  the  Vermont  statute, 
regulating  the  observance  of  the  Sabbath, 
by  the  fact  that  the  arbitrators  make  and 
publish  their  award  at  three  o'clock  OD 
Sunday  morning.  Blood  v.  Bates,  31  Vt 
147.] 


68 


LAW   OF   E\aDEXCE. 


[part  i\ 


rules  of  court,  puts  in  issue  every  material  averment.  Under  thi 
Issue,  therefore,  the  defendant  may  not  only  show  those  thing 
which  aflfect  the  original  validity  of  the  submission,  or  of  thi 
award,  such  as  infancy,  coverture,  want  of  authority  in  the  arbi 
trators,  fraud,  revocation  of  authority,  intrinsic  defects  in  th^ 
award,  and,  if  there  is  no  other  mode  of  relief,  extrinsic  irregular 
ities  also,  such  as  want  of  notice  and  the  like  ;  but  he  may  als^ 
sliow  anything  which  at  law  would  defeat  and  destroy  the  action 
though  it  operate  by  way  of  confession  and  avoidance,  such  as 
release,  payment,  or  performance.^  And  sometimes,  where  ai 
sumpsit  has  been  brought  upon  the  original  cause  of  action,  eithe 
party  has  been  permitted  to  show  the  submission  and  award  unde 
the  general  issue,  as  evidence  of  a  statement  of  accounts  and  a: 
admission  of  the  balance  due,  or  of  a  mutual  adjustment  of  th 
amount  in  controversy .^ 


1  Stephen  on  Pleading,  p.  179  -  182  (Am. 
ed.  18-24) ;  Taylor  v.  Coryell,  12  S.  &  R- 
243,  251 ;  Allen  v.  Watson,  16  Johns." 
203. 

2  Keene  v.  Batshore,  1  Esp.  1 94 ;  Kings- 
ton V.  Phelps,  Peake's  Cas.  328.  [*  Arbi- 
trators are  not  bound  to  follow  the  strict 
rules  of  law,  or  even  what  they  deem  to  be 
such,  unless  it  be  a  condition  of  the  sub- 
mission that  they  shall  do  so ;  and  when 
there  is  no  such  condition,  courts  will  not 
refuse  to  enforce  an  award,  on  the  ground 
that  the  arbitrators  have  not  followed  strict- 
ly legal  rules  in  hearing  and  deciding  a 
case,  unless  it  be  shown  that  thereby  mani- 
fest injustice  has  been  done.  Remelee  v. 
Hall,  31  Vt.  583.  "  We  think,  the  more 
modern  cases  adopt  the  principle,  that,  in- 
asmuch as  a  judicial  decision  upon  a  ques- 
tion of  right,  by  whatever  forum  it  is 
made,  must  almost  necessarily  involve  an 
application  of  certain  rules  of  law  to  a  par- 


ticular statement  of  facts,  and  as  the  gres 
purpose  of  a  submission  to  arbitratio 
usually  is,  to  obtain  a  speedy  dctcrmini 
tion  of  the  controversy,  a  submission  I 
arbitration  embraces  the  power  to  decic 
questions  of  law,  unless  that  presumptio 
is  rebutted  by  some  exception  or  limitatic 
in  the -submission.  We  are  not  aware  thi 
there  is  anything  contrary  to  the  policy  c 
the  law,  in  permitting  parties  thus  to  su 
stitute  a  domestic  forum  for  the  courts  c 
law,  for  any  good  reason,  satisfiictory  i 
themselves  ;  and  having  done  so,  there  is  i 
hardship  in  holding  them  bound  by  the  r 
suit."  —  Shaw,  C.  J.  Boston  Water  Pow< 
Co.  V.  Gray,  6  Met.  167.  See  Estes 
Mansfield,  6  Allen,  69  ;  and  Haigh  i;.Haig 
8  Jur.  N.  S.  983.  See  also  Horton  v.  Sayc 
5  Jur.  N,  S.  989,  as  to  agreements  ( 
parties,  that  all  disputes  that  may  arii 
between  them  shall  be  referred  to  art 
tration.] 


PART  IV.]  ASSAULT   AND  BATTERY.  69 


ASSAULT    AND    BATTERY. 

(•  §  82.  Assault  defined. 

83.  Intent  to  do  harm  is  of  the  essence  of  an  assault. 

84.  Battery  is  actual  infliction  of  violence  on  the  person.     Acts  constituting 

this. 

85.  Unlawful  intent  or  fault  of  defendant  must  be  proved. 

86.  Neither  time  nor  place  laid  in  declaration  ordinarily  need  be  proved. 

87.  Actual  battery  must  be  alleged,  but  need  not  be  proved. 

88.  Consequential  injuries  must  be  specially  laid  in  declaration  under  z,per  quod, 

89.  Legal  and  natural  consequences  of  tortious  act  need  not  be  stated.    Manner, 

motives,  place,  and  circumstances  of  assault  may  be  proved  without  being 
specially  stated. 

90.  Conviction  of  same  offence  upon  indictment  on  plea  of  guilty  proves  trespass. 

Admissions  of  one.  conspirator  admissible  against  others. 

91.  The  alia  enormia  enables  plaintiff  to  prove  such  circumstances  as  could  not 

conveniently  be  stated  on  the  record. 

92.  Matters  of  defence,  and  how  to  be  pleaded. 

93.  Under  the  general  issue,  the  defendant  may  rely  on  any  part  of  the  res  gestce  in 

mitigation  of  damages.     Whatever  cannot  be  pleaded  may  be  proved  under 
this  issue. 

94.  The  quo  animo  is  material  in  case  of  mere  assault,  but  not  in  case  of  battery, 

except  as  it  may  go  in  mitigation  of  damages. 

95.  Plea  of  son  assault  demesne,  with  replication  de  injuria.    What  may  be  proved 

under  it. 

96.  The  replication  de  injuria  puts  in  issue  only  the  matter  alleged  in  the  plea  j  and 

nothing  can  be  proved  which  is  beyond  the  plea, 

97.  What  is  requisite  to  support  the  plea  of  moderate  castigavit. 

98.  Under  plea,  molliter  manus  imposuit  may  be  proved,  the  prevention  of  some 

unlawful  act,  or  resistance,  for  some  lawful  cause.     Illustrations. 
99   What  must  be  shown  to  justify  the  act  as  done  to  preserve  the  peace,  &o 
100.  Must  be  no  unnecessary  detention.] 

§  82.  An  assault  is  defined  to  be  an  inchoate  violence  to  the 
person  of  another,  with  the  present  means  of  carrying  the  intent 
into  effect.^  Mere  threats  alone  do  not  constitute  the  offence  ; 
there  must  be  proof  of  violence  actually  offered.^    Thus,  if  one 

1  1  Steph.  N.  P.  208 ;  Finch's  Law,  202  ;     (defendant)  on  the  day  of ,  at 

Stephens  v.  Myers,  4  C.  &  P.  349.  ,  in  and  upon  the  plaintiff,  with  force 

2  Stephens  v.  Myers,  4  C.  &  P.  349 ;  and  arms,  made  an  assault,  and  him  the 
Tuberville  v.  Savage,  1  Mod.  3.  The  dec-  said  plaintiff  then  and  there  diu  beat, 
laration  for  an  assault  and  battery  is  thus  :  wound,  and  ill  treat  "  [here  may  be  stated 
"  In  a  plea  of  trespass ;  for  that  the  said  any  special  matter  of  aggravation],  "  and 


70  LAW   OF   EVIDENCE.  [PART  IV. 

ride  after  another,  and  oblige  liim  to  run  to  a  place  of  security  to 
avoid  being  injured  ;  ^  or  throw  at  him  any  missile  capable  of  doing 
hurt  with  intent  to  wound,  whether  it  hit  him  or  not ;  ^  or  level  a 
loaded  gun,  or  brandish  any  other  weapon  in  a  menacing  manner, 
within  such  a  distanee  as  that  harm  might  ensue  ;  ^  or  advance,  in 
a  threatening  manner,  to  strike  the  plaintiff,  so  that  the  blow 
would  have  reached  him  in  a  few  seconds  if  the  defendant  had  not 
been  stopped  ;  *  in  all  these  cases  the  act  is  an  assault.  So,  if  he 
violently  attack  and  strike  with  a  club  the  horse  which  is  harnessed 
to  a  carriage,  in  which  the  plaintiff  is  riding.^  But  to  stand  in 
another's  way  and  passively  to  obstruct  his  lawful  progress,  as  an 
inanimate  object  would,  though  done  by  design,  is  no  assault.^ 

§  83.  The  intention  to  do  harm,  is  of  the  essence  of  an  assault;"^ 
and  this  intent  is  to  be  collected  by  the  jury  from  the  circum- 
etances  of  the  case.  Therefore  if  the  act  of  the  defendant  was 
merely  an  interference  to  prevent  an  unlawful  injury,  such  as  to 
separate  two  combatants  ;  ^  or  if,  at  the  time  of  menacing  violence, 
he  used  words  showing  that  it  was  not  his  intention  to  do  it  at  that 
time,  as  in  the  familiar  example  of  one's  laying  his  hand  on  his 
sword,  and  saying  that  if  it  were  not  assize-time  he  would  not  take 
such  language  ;  ^  or  if,  being  unlawfully  set  upon  by  another,  he 
puts  himself  in  a  posture  of  defence  by  brandishing  his  fists  or  a 
weapon ,!<)  it  is  no  assault.  So,  where  one  threw  a  stick,  which 
struck  the  plaintiff,  but  it  did  not  appear  for  what  purpose  it  was 
thrown,  it  was  presumed  that  it  was  thrown  for  a  proper  purpose, 
and  that  the  striking  of  the  plaintiff  was  merely  an  accident.i^ 

§  8-1:.  A  battery,  is  the  actual  infliction  of  violence  on  the  per- 
son. This  averment  will  be  proved  by  evidence  of  any  unlawful 
touching  of  the  person  of  the  plaintiff,  whether  by  the  defendant 
himself,  or  by  any  substance  put  in  motion  by  him.  Tlie  degree 
of  violence  is  not  regarded  in  the  law ;  ^^  it  is  only  considered  by 

other  wrongs  to  the  plaintiff,  then  and  there  Nichol,  Russ.  &  Ry.  130  ;  or  with  a  female 

did  against  the  peace.     To  the  damage,"  patient;  Rex  v.  Kosinski,  Ry.  &  M.  19; 

&c.      The  material  allegations  in  an  in-  though  unresisted,  is  an  assault, 
dictment  are  the  same  as  in  a  civil  action.  «  Jones  v.  Wylie,  1  C.  &  K.  2.57. 

1  Morton  v.  Shoppce,  3  C.  &  P.  373.  7  But  as  to  battery,  see  infra,  §  94. 

2  2  Hawk.  P.  C,  B.  I,  ch.  62,  §  1.  8  Griffin    v.  Parsons,    1    Selw.  N.   P. 
Ibid.     If  the  gun  is  not  loaded,  it  is  no  2.5,  26. 

assault.     Blake  v.  Barnard,  9  C.  &  P.  626  ;  a  Bull.  N.  P.  15  ;  Tubcrvillc  v.  Savage, 

Kegma  v.  James,  1  C.  &  K.  .530.  1  Mod.  3 ;  2  Keb.  545;  Commonwealth  v. 

*  Steplicns  V.  Myers,  4  C.  &  P.  439,  per  Eyre,  1  S.  &  R.  347. 

Tindal,  C.  J.  i)  Moriarty  v.  Brooks,  6  C.  &  P.  684. 

6  De   Marentille  v.  Oliver,   1  Penning.  "  Alderson  v.  Waistell,  1  C.  &  K.  358. 

880,  per  Pennington,  J.     Taking  indecent  12  Lcame  v.  Bray,  3  East,  602.     Cutting 

liberties  with  a  female    pupil ;    Rex    v.  off  the  hair  of  a  parish  pauper  by  the  par- 


PART  IV.]  ASSAULT  AND  BATTERY.  71 

the  jury,  iu  assessing  the  damages  in  a  civil  action,  or  by  the  judge 
in  passing  sentence  upon  indictment.  Thus,  any  touching  of  the 
person  in  an  angry,  revengeful,  rude,  or  insolent  manner ;  ^  spit- 
ting upon  the  person  ;  ^  jostling  him  out  of  the  way  ;  ^  pushing 
another  against  him ;  *  throwing  a  squib  or  any  missile,  or  water 
upon  him ;  ^  striking  the  horse  he  is  riding,  whereby  he  is  thrown ;  ^ 
taking  hold  of  his  clothes  in  an  angry  or  insolent  manner,  to  detain 
him,'  is  a  battery.  So,  striking  the  skirt  of  his  coat  or  the  cane 
in  his  liand,^  is  a  battery  ;  for  anything  attached  to  the  person, 
partakes  of  its  inviolability.^ 

§  85.  And  here  also  the  plaintiff  must  come  prepared  with  evi- 
dence to  show,  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault ;  for  if  the  injury  was  unavoidable,  and  the 
conduct  of  the  defendant  was  free  from  blame,  he  will  not  be  lia- 
ble.^'^  Thus,  if  one  intend  to  do  a  lawful  act,  as  to  assist  a 
drunken  man,  or  prevent  him  from  going  without  help,  and  in  so 
doing  a  hurt  ensue,  it  is  no  battery .^^  So,  if  a  horse  by  a  sudden 
fright  runs  away  with  his  rider,  not  being  accustomed  so  to  do, 
and  runs  against  a  man ;  ^^  or  if  a  soldier,  in  discharging  his  mus- 
ket by  lawful  military  command,  unavoidably  hurts  another ,^3  it 
is  no  battery  ;  and  in  such  cases  the  defence  may  be  made  under 
the  general  issue.-'*  But  to  make  out  a  defence  under  tliis  plea,  it 
must  be  shown  that  the  defendant  was  free  from  any  blame,  and 
that  the  accident  resulted  entirely  from  a  superior  agency.  A  de- 
fence which  admits  that  the  accident  resulted  from  an  act  of  the 
defendant,  must  be  specially  pleaded.^^  Thus,  if  one  of  two  per- 
sons fighting,  unintentionally  strikes  a  third  ;  ^^  or  if  one  uncocks  a 
gun  without  elevating  tlie  muzzle,  or  other  due  precaution,  and  it 
accidentally  goes  off  and  hurts  a  looker-on  ;  ^'  or  if  he  drive  a  horse 

ish  officers,  against  her  will,  was  held  a  bat-  ^  Ibid. 

tery.     Ford  v.  Skinner,  4  C.  &  P.  239.  w  i  Yi\n^.  213,  per  Dallas,  C.  J. ;  1  Com. 

1  2  Hawk.  P.  C,  B.  1,  c.  62,  §  2  ;  4  Bl.  Dig.  129,  tit  Battery,  A. ;  1  Chitty  on 
Comin,  120.  PI.   120.     See  infra,  %  94,  and  tit.  Dam- 

2  1   East,  P.  C.  406;  Regina  v.  Cotes-  ages,  §§  269,  271. 
worth,  6  Mod.  172.  n  Bull.  N.  P.  16 

3  Pull.  N.  P.  16.  12  Gibbons  v.  Pepper,  4  Mod.  404;  Bull. 

*  Cole  V.  Turner,  6  Mod.  149.  N.  P.  16. 

6  Scott  V.  Shepherd,  2  W.  Bl.  892  ;   3  i^  "Weaver  v.  Ward,  Hob.  134. 

Wils.   403,    S.    C. ;    Pursell    v.   Horn,    8  i*  4  Mod.  405. 

Ad.    &   El.   605;    Simpson    v.  Morris,   4  i^  Hall  v.  Fearnley,  3  Ad.  &  El.  919, 

Taunt.  821.  N.  S.     See  infra,  §§  94,  622,  625  ;  1  Chitty, 

6  Dodwell  V.  Burford,  1  Mod.  24.  PI.  437  ;  Knapp  v.  Salsbury,  2  Camp.  500 ; 

"<  United  States  i\  Ortega,  4  Wash.  534 ;  Boss  v.  Litton,  5  C.  &  P.  407. 

1  Baldw.  600.  le  James  v.  Campbell,  5  C.  &  P.  372. 

*  Respublica  v.  De  Longchamps,  1  Dall.  ^'^  Underwood  v.  Hewson,  Bull.  N.  P.  16; 
111,  114,  per  McKean,  C.  J. ;  The  State  v.  1  Stra.  596,  S.  C.  So,  if  he  negligently 
Davis,  1  HL'l  (S.  Car.  R.  46).  di.<rhari?es  a  gun.     Dickenson  v.  Watson, 


T2  LAW   OF   EVIDENCE.  [PART  IV, 

too  spirited,  or  pulls  the  wrong  rein,  or  uses  a  defective  harness, 
and  the  horse  taking  fright  injures  another,^  he  is  liable  for  the 
battery.  But  if  the  injury  happened  by  unavoidable  accident,  in 
the  course  of  an  amicable  wrestling-match,  or  other  lawful  athletic 
sport,  if  it  be  not  dangerous,  it  may  be  justified.^  If  it  were  done 
in  a  boxing-match,  or  fight,  though  by  consent,  it  is  an  unjustifiable 
battery  ;  ^  the  proof  of  consent  being  admissible  only  in  mitigation 
of  damages.* 

§  86.  Neither  the  time  nor  the  place,  laid  in  the  declaration,  are 
ordinarily  material  to  be  proved.  Evidence  of  the  trespass  com- 
mitted previous  to  the  commencement  of  the  action  is  sufficient ;  ^ 
and  it  may  be  proved  in  any  place,  the-  action  being  personal  and 
transitory.^  But  if  the  declaration  contain  only  one  count,  and 
the  plaintiff  prove  one  assault,  he  cannot  afterwards  waive  that, 
and  prove  another.''  Nor  can  he  give  evidence  of  a  greater  num- 
ber of  assaults,  than  are  laid  in  the  declaration.^  If  the  action  is 
against  several  for  a  joint  trespass,  the  plaintiff  having  proved  a 
trv^spass  against  some  only,  cannot  afterwards  be  permitted  to 
prove  a  trespass  done  at  another  time,  in  which  all  or  any  others 
were  concerned  ;  but  he  is  bound,  by  the  election  which  he  has 
made,  to  charge  some  only  ;  for,  otherwise,  some  might  be  charged 
for  a  trespass  in  which  they  had  no  concern.*^  So,  if  he  prove  a 
trespass  against  all  the  defendants,  he  cannot  afterwards  elect  to 
go  upon  a  separate  trespass  against  one.^"  And  if  he  prove  a  tres 
pass  against  some,  he  is  bound  to  elect  before  the  defendants  open 
their  case,  against  which  defendants  he  will  proceed.^^ 

§  87.  Nor  is  it  necessary  to  prove  an  actual  battery,  though  it 
must  be  alleged  in  the  declaration  ;  for,  upon  proof  of  an  assault 
only,  the  plaintiff  will  be  entitled  to  recover.^^ 

§  88.  If  the  plaintiff  would  recover  for  consequential  injuries. 
they  must  be  specially  laid  in  the  declaration,  under  a.  per  quod}^ 

T.  Jones,  205 ;  Taylor  x\  Rainbow,  2  Hen.  ^  Scdlcy    v.    Sutherland,   3   Esp.    202 , 

&  Munf.  423 ;  Blin  v.  Campbell,  14  Johns.  Kitchen  v.  Tealc,  2  M.  &  Rob.  30.    But  seo 

432.  Roper  v.  Harper,  5  Scott,  2.')0. 

1  Wakeman  v.  Robinson,  1  Bin":.  213.  ^''  Tait  r.  Harris,  1  M.  &  Hob.  282,  per  Ld. 

2  5  Com.  Dig.  795,  tit.  Pleadek,  3  M.  Lvndhurst,  Ch.  B.     In  llitclicn  c.  I'eale,  2 
18  ;  Foster,  Cr.  L.  259,  260.  M".  &  Rob.  .30,  Pattcson,  J.,  said  ho  could 

^  Boulter  v.  Clark,  Bull.  N.  P.  16;  Stout  not  very  well  understand  the  ))riiiciple  on 

V.  Wren,  1  Hawks,  420.  which  tliis  decision  was  founded. 

*  Lo;,fan  v.  Austin,  1   Stew.  476.     See  ^^  Howard    v.   Newton,   2    .M.    &    Rob 
infra,  tit.  Damages.  509. 

s  1    Saund.  24,  note  (1),  by  Williams  j  i^  Bro.  Abr.  Tresp.  pi.  40;  40  E.  3  40, 

Bull.  N.  P.  86;  Brownl.  2.33.  1    Steph.  N.  P.  213;  Lewis  v.  Hoover,  .3 

^  Mostyn  v.  Fabrigas,  Cowp.  161.  Blaekf.  407. 

^  Stante  v.  I'ricket,  1  Campb.  473.  ^*  Pcttit  v.  Addington,  Peake's  Cas.  62 

•  Gillon  V.  Wilson,  3  Monr.  217.  But   the  plaintiff  cannot  reoover  in  thii 


PART  IV.]  ASSAULT   AND   BATTERY.  73 

Of  these,  the  loss  of  the  society  of  his  wife,  or  of  the  services  of  his 
servant,  are  examples.^  The  relation  of  husband  and  wife  is 
proved  in  such  cases,  by  evidence  of  a  marriage  de  facto.  If  the 
action  is  for  assaulting  and  beating  the  plaintiff's  son,^  or  for  se- 
ducing his  daughter,  per  quod,  it  is  sufficient  to  show  that  the  child 
lived  in  the  parent's  family  without  proof  of  actual  service ;  ^  or, 
if  the  child  lived  in  a  neighbor's  family,  it  is  sufficient  to  prove 
that  he  also  daily  and  ordinarily  performed  services  for  the  parent.* 
If  the  daughter  is  emancipated,  and  resides  apart  from  the  parent's 
family,  the  parent  cannot  recover.^  But  if  the  daughter  actually 
resides  with  her  father,  even  though  she  be  a  married  woman,  if 
she  lives  apart  from  her  husband,  the  father  may  maintain  the 
action.^  In  all  these  cases,  it  is  sufficient  to  prove  the  relation  of 
master  and  servant  de  facto  ;  and  proof  of  very  slight  acts  of  ser- 
vice is  sufficient.'^ 

§  89.  It  is  not,  however,  necessary  to  state  specially  any  mat- 
ters which  are  the  legal  and  natural  consequence  of  the  tortious 
act ;  for  all  such  consequences  of  his  own  actions  every  man  is 
presumed  to  anticipate  ;  and  as  one  of  the  objects  of  the  rule, 
which  requires  particularity  of  averment  in  pleading  is,  to  give  the 
other  party  notice  that  he  may  come  prepared  to  meet  the  charge, 
such  particularity  is  in  these  cases  superfluous.  The  plaintiff,  there- 
fore, under  the  usual  allegation  of  assault  and  battery,  may  give 
evidence  of  any  damages  naturally  and  necessarily  resulting  from 
the  act  complained  of.^     But  where  the  law  does  not  imply  the 

form  for  injury  for  which  a  separate  action  Thomson,  2  C.  &  P.  303  ;  Irwin  v.  Dear- 
lies,  either  by  himself  or  by  another.  1  man,  11  East,  23;  Nickleson  v.  Striker, 
Chitty  on  PI.  347  -349  ;  Wallace  v.  Ha  i-  10  Johns.  115.  See  also  1  Chitty  on  PI. 
acre,  1  Campb.  45,  49  ;  Bull.  N.  P.  8S.  50. 

1  Guy  V.  Livesey,  Cro.  Jac.  501 ;  Wood-         ^  Moore  v.  Adam,  2  Chitty,  R.  198,  per 

ward  V.  Walton,  2  New  Rep.  476  ;  9  Co.  Bailey,  J. ;  1  Chitty  on  PI.  346.    The  plaiu- 

113,  a ;  Ream  v.  Rank,  3  S.  &  R.  215.  titf  may  recover  for  the  dama,:,fe  he  is  likely 

-  Jones  V.  Brown,  Peake's  Cas.  233 ;  1  to  sustain,  after  the  trial,  as  the  natural  con- 

Esp.  217,  S.  C.  sequence  of  the  injury;  because,  for  these 

^  Maunder  v.  Venn,  1  M.  &  Malk.  323 ;  damages,  he  can  have"^ijo  other  action.    Fet- 

Mann  v.  Barrett,  6  Esp.  32.  ter  v.  Beale,  1  Ld.  Ravm.  339  ;  2  Salk.  11, 

*  1  Steph.  N.  P.  214.  S.  C.     [*  The  plaintiff's  complaints  of  pain 

s  Dean   v.  Peel,  5  East,  45 ;   Anon.   1  and  soreness,  made  to  other  persons  at  the 

Smith,  333 ;    Postlethwaite   v.  Parkes,   3  time  and  soon  after  the  commission  of  the 

Burr.  1878.     If  the  daughter,  being  under  ass.uilt,  are  competent  evidence,  in  liis  own 

age,  is  actually  in  the  service  of  another,  behalf,  in  respect  to  the  extent  of  t!ie  in- 

bui  the  father  has  not  devested  himself  of  jury,  in  connection  with  other  testimony, 

his  right  to  reclaim  her  services,  it  has  been  Werely  v.  Persons,  28  N.  Y.  344.     Evi- 

held,  that  he  may  maintain  this  action,  dence  of  the  value  of  plaintiff's  business  is 

Martin  v.  Payne,  9  Johns.  387.     See  infra,  admissible  in  an  action  for  damages  for  a 

tit.  Sedcction.  bodily  injury   which   disqualified   him    to 

^  Harper  v.  Luffkin,  7  B.  &  C.  ^87.  perform  it.     Nebraska  City  v.  Campbell,  3 

'  Fores    v.   Wilson,   Peake's    Cas.    55 ;  Black,  U.  S.  R.  590.] 
Bennett  u.  Alcott,  2  T.  R.  166 ;  Manvell  v. 


74  LAW   OF  EVIDENCE.  [PARl  IV» 

damage,  as  the  natural  and  necessary  consequence  of  the  assault 
and  battery,  it  should  be  set  forth  with  particularity  ;  such,  for 
example,  as  the  general  loss  of  health,  or  the  contracting  of  a  con- 
tagious disease,  or  being  stinted  in  allowance  of  food,  in  an  action 
for  an  assault  and  false  imprisonment ;  or  an  injury  to  his  clothes, 
in  a  personal  rencounter  and  the  like.^  The  manner,  motives, 
place,  and  circumstances  of  the  assault,  however,  though  tending 
to  increase  the  damages,  need  not  be  specially  stated,  but  may  be 
shown  in  evidence.  Thus,  where  the  battery  was  committed  in 
the  house  of  the  plaintiff,  which  the  defendant  rudely  entered, 
knowing  that  the  plaintiff's  daughter-in-law  was  there  sick  and  in 
travail,  evidence  of  this  fact  was  held  admissible  without  a  particu 
lar  averment.2  Nor  are  the  jury  confined  to  the  mere  corporal 
injury  which  the  plaintiff  has  sustained  ;  but  they  are  at  liberty  to 
consider  the  malice  of  the  defendant,  the  insulting  character  of  his 
conduct,  the  rank  in  life  of  the  several  parties,  and  all  the  circum- 
stances of  the  outrage,  and  thereupon  to  award  such  exemplary 
damages  as  the  circumstances  may  in  their  judgment  require.^ 

§  90.  In  proof  of  the  trespass,  the  plaintiff  may  give  in  evidence 
a  conviction  of  the  defendant  upon  an  indictment  for  the  same 
offence,  provided  the  conviction  was  upon  the  plea  of  guilty  ;  but 
not  otherwise.*  And  if  it  was  a  joint  trespass  by  several,  the  con- 
fessions and  admissions  of  any  of  them,  made  during  the  pendency 
of  the  enterprise  and  in  furtherance  of  the  common  design,  may  be 
given  in  evidence  against  the  others,  after  a  foundation  has  been 
laid  by  proving  the  fact  of  conspiracy  by  them  all  to  perpetrate 
the  offence.^ 

§  91.  The  alia  enormia,  is  an  averment  not  essential  to  the  dec- 
laration for  an  assault  and  battery  ;  its  office  is  merely  to  enable 
the  plaintiff  to  give  in  evidence  under  it  such  circumstances  be- 
longing to  the  transaction,  as  could  not  conveniently  be  stated  on 
the  record.^     Things  which  naturally  result  from  the  act  com- 

1  Chitty  on  PI.  346,  347 ;  Lowden  v.  of  the  defendant,  in  the  presence  of  the 
Goodriek,  Peakc's  Cas.  46 ;  Pettit  v.  Ad-  plaintiff,  may  also  be  shown.  Sledf,^e  v 
din-i-ton  lb.  62;  Avery  v.  Ray,  1  Mass.  12.  Pope,  2  Hayw.  402.  See  infra,  tit.  Dam- 
Sec%Aa,  tit.  Damagks,  §§  •A'iS,  255.  ages,    §§    253,    267,    &c.      McNamara    ?; 

2  Sami).son  v.  Henry,  1 1  Pick.  379.  King,  2  Gilm.  432  ;  Reed  r.  Davis,  4  Pick 
8  Merest  y.  Harvey,  5  Taunt.  442.  Heath,     216. 

J.,  in  this  case,  remarked,  that  "it  goes  to  *  Ante,  Vol.  1,  §  537,  note;  Rcgina  v 

prevent  tlic  practice  of  duelling,  if  juries  Moreau,  12  Jur.  626.     [*  Corwin  v.  Wal 

are  ])ermittcd  to  punish  insult  by  cxcm-  ton,  18  Mis.  71.] 

plary  damages."     Bracegirdle  v.  Orford,  2  ^  Ante,  Vol.  1,  §  111. 

M.  &  S.  77  ;  TuUidge  v.  Wade,  3  Wils  19  ;  M  Chitty  on  PI.  348  ;  Lowden  v.  Good 

■       "'            "     Sliafer  rick,  Peakc's  Cas.  45.    ^aa  infra,  tit.  Yixyi 
AGES,  §  £76  ;  Supra,  §  85. 


Davcnjiort  v.  Ru?-?«1,  5  Day,  145;  Sliafei 
t  yiuilh,  7  liar.  &  ".  67.     Previous  threati 


PART  IV.]  ASSAULT    ANP    RAirKKY.  Tf) 

plained  of  mny,  as  wo  havo  soon,  bo  shown  iukKm-  IIki  olhor  avor- 
ments. 

§  92.  Matters  of  dcfcno.c.  in  this  action  aro  usually  disirihtitiHl 
under  throo  heads,  namely  :  first,  In.ficidfion.,  or  denial  of  the  fiict, 
which  is  done  only  by  (he  ploa  of  not  guilly  ;  secondly,  l<!.rcnii(\ 
which  is  an  admission  of  Ihc  fact,  but  saying  it  was  done  a'uudcii- 
tally,  or  by  superior  a|;-eiiey,  and  wilhont  any  fault  of  the  (h'l'cnd- 
ant ;  and  this  may  bo  eitlier  sp(M',ialIy  pI(M(led,  or  [!;iv(Mi  in  ovi(hiM«-.o 
under  the  general  issue  ;  and  thirdly,  JuMlJhntiiiii,  which  must 
always  be  specially  pleadtnl.'  'J'o  these  may  be  addcul  matters  in 
diachargc^  such  as  a  release,  accord  and  HutlsJ'iictioii.^  ar/iifrdiiinit., 
former  recovery,  the  statute  of  limitationx^  and  Ihe  liiic,  which  also 
must  be  sjxHnally  pleaded.^  lint  it  should  l)e  obKerved  that  tlu^so 
rules  apj)ly  only  to  suits  aj^ainst  j)rivato  persons.  For,  wluu-c!  ac- 
tions aro  brought  against  public  ofTicorB,  for  acts  done  by  virtue  of 
their  office,  th(;y  aro  i)ermitted  by  statutes  to  plead  the  general 
issue,  with  a  brief  statement  in  writing  of  the  sp(!cial  inatter  of 
justification  to  bo  given  in  evidence. 

§  93.  Under  the  general  insue,  the  defendant,  in  miligal.ion  of 
damages,  may  give  in  evidence  a  provocation  by  the  plain  till',  jtro- 
v^ided  it  was  so  recent  and  immedia,t(!  as  to  induce  a  presninplion 
that  the  violence  was  commitbtd  uudcsr  the  imm(5diate  in(luenc,o 
Df  the  [)assion  thus  wrongfully  (ixeited  hy  the  plaintiff.''  Indeed, 
the  defendant,  iu  juitigatiou  of  damages  may,  undc,r  this  issue, 
rely  on  any  part  of  the  res  gestae,  though,  if  pleaded,  It  would  have 
imountod  to  a  justification  ;  notwithstanding  th(j  gencu'al  rule, 
that,  whatever  is  to  b(i  slujwn  in  justification  nmst  bo  upecJally 
pleaded  ;  for  everything  whieh  passed  at  the  time;  is  pa.it  of  Iho 
transaction  on  which  the  plaintiff's  action  is  founded,  and  there- 
fore ho  could  not  bo  surprised  by  the  evidence.^  And  it  is  also 
laid  down,  as  a  general  ruhj,  that  whatever  cannot  be  phjaded,  iriay 
be  given   in   evidence    under   this   issue.'''     Th<jref<jn;,    wheie    the 

1  Bull.  N.  P.  17.  battery.     |*lii   Collins  i;.  To<l(J,  17    Miit. 

(/Iiitty  on  J'l.  441.  .'j.'J7,  evidence  oC  of»|>rohrion«  IiiijJ4ii;it;<!  iiiii'4 

_  2  Dennis  v.  I'uwViui^,  12  Vin.  Abr.  \:,'.),  I<y  ili<;  pluinlid'towanJn  llic  ni(M;«  ami  histur- 

;it.  Kvi<l.  1  I),  pi.  16,  per  I'riee,  15. ;  J.,i-e  v.  in-law  ol'  tho  ileremlant,  a  day  or  w  beCoro 

Woolsey,  lOJolins.  .'Jl  J  ;  (Jublmian  v.  Wivl-  tlie  ahwanlt,  wm  lield  inadinihsilde  in  niiti- 

lel),  1  JJald.  .OH  ;  Avery  v.  Hny,  1  MaK«.  |2  ;  gation  of  dainageH.    J>e(endant,  aCUr  j^rov- 

MatllicwH  V.  Terry,  10  Conn.  4.55;  Fuller-  iuf(  the  HlaU;ment  oC  tlie  plainlifl'  i/ninedi- 

ton  V.  VVarriek..'J   HlackC.  219;    Anderwn  ately  alW  iIkj  diUleulty,  ;t«  to  iU  orij^in, 

i).  Johnson,  :i  Mar.  &  J.  102,     In  Frawsr  v.  cunnot  prove  hiw  own  in  reply,     (/oliina  w. 

Berkley,  2  M.  &  UoIj.  :i,  J^d.  Abin^^er  ad-  'J'odd,  Hu//ra.\ 

mhuA  evidence  of  provo<;alion,  namely,  a,  *  JJinj^liain  v.  (iarnault,  Hull.  N.  J'.  17 

libel  publibhed  bome  time  ^jreviouH  to  the  '  2  Ji.  &  I'.  224,  note  (it).     (,'J  ho  defend 


70  LAW   OF  EVIDENCE.  [PART  I' 

beating  in  question  was  by  way  of  punishment  for  misbehavior  o 
board  a  ship,  and  for  the  maintenance  of  necessary  discipline,  th 
evidence  was  held  not  admissible  in  mitigation  of  damages,  becaue 
.he  facts  might  have  been  pleaded  in  justification. ^  Where  tl 
action  was  for  assault  and  false  imprisonment,  evidence  of  reaso'i 
able  suspicion  of  felony  has  been  held  admissible,  in  mitigation  c 
damages.^ 

§  94.  In  the  case  of  a  mere  assault,  the  quo  animo  is  materia 
as,  without  an  unlawful  intention,  there  is  no  assault.  Any  ev 
deuce  of  intention^  therefore,  is  admissible  under  the  general  issue 
But  in  the  case  of  a  battery,  innocence  of  intention  is  not  materia 
except  as  it  may  go  in  mitigation  of  damages  ;  unless  it  can  I 
shown  that  the  defendant  was  wholly  free  from  fault ;  becau! 
every  man  who  is  not  entirely  free  from  all  blame,  is  responsib 
for  any  immediate  injury  done  by  him  to  the  person  of  anothe 
though  it  were  not  wilfully  inflicted.  Therefore,  if  the  act  of  tl 
defendant  was  done  by  inevitable  necessity,  as  if  it  be  caused  \ 
ungovernable  brute  force,  his  horse  running  away  with  him  wit 
out  his  fault  ;*  or,  if  a  lighted  squib  is  thrown  upon  him,  and 
save  himself  he  strikes  it  off  in  a  new  direction  ;  ^  in  these  and  tl 
like  cases,  the  necessity  may  be  shown  under  the  general  issue,  : 
disproof  of  the  battery.  But  if  the  plaintiff  was  himself  guilty  ( 
incautious  or  improper  conduct,  he  cannot  recover  unless  the  ca 
was  such  that  by  the  exercise  of  ordinary  care,  he  could  not  ha-' 
avoided  the  consequences  of  the  defendant's  neglect,^  or  was  inc 
pable  by  want  of  understanding  or  discretion,  of  taking  such  can 
In  other  words,  the  defendant  is  answerable  only  for  those  cons 
quences  which  the  plaintiff,  by  ordinary  care  could  not  have  pr 

ant  cannot  show,  that,  from  the  interaper-  and  of  peaceable  demeanor.     Smithwick 

ate  habits  of  the  plaintiff,  the  injury  was  Ward,  7  Jones's  Law,  64.] 

more  aggravated  than  it  would  have  been  **  Griffin  v.  Parsons,  1    Selw.  N.  P.  i 

upon  a  person  of  temperate  habits.    Little-  26  ;  Supra,  §  83. 

hall  V.  Dix,  1 1    Cush.  364.     Nor  can  the  *  Wakcman  v.  Robinson,  1  Bing.  21 

defendant  put  in  evidence  the  bad  charac-  Gibbons  v.  Pepper,  4  Mod.  404 ;    1    Sa 

ter  of  the  j)laintiff  in  mitigation  of  dama-  637  ;   Bull.  N.  P.  16  ;   Hall  v.  Fearnley 

ges.     Corning  y.  Corning,  2  Selden,  N.  Y.  Ad.  &  El.  919,  N.  S. ;  Vincent  v.  Stii 

97.]  hour,  7  Verm.  62. 

1  Watson  V.  Christie,  2  B.  &  P.  224.  &  Scott  v.  Shepherd,  3  Wils.  403.     S 

"  Chinn  v.  Morris,  2  C.  &  P.  361 ;  1  Ry.  also  Beckwith  v.  Shordike,  4  Burr.  209 

&  M.  324,  S.  C.     The  law  of  damages,  in  Davis  v.  Saunders,  2  Chitty,  R.  639 ;  !i 

actions  ex  delicto,  in  regard  to  evidence  in  pra,  §  85. 

aggravation  or  mitigation,  is  treated  with  ^  Davis  v.  Mann,  6  Jur.  954  ;  10  M. 

great  atniity  and  Just  discrimination,  in  an  W.   546,  S.   C. ;  Kennard   v.  Burton, 

article  in  3  Am.  jurist,  p.  287-313.     [*  It  Shepl.  39;   [Brown  v.  Kendall,  6   Cui 

is  not  competent  to  prove  that  the  plaintiff  292.] 

is  a  turbulent  man,  and  of  desperate  disposi-  ''  Lynch  v.  Nurdin,  I  Ad.  &  El.  29,  N.  J 

tion ;  nor  that  the  defendant  is  a  quiet  man,  5  Jar.  797. 


PART  IV.]  ASSAULT  AND  BATTERY.  77 

vented ;  the  degree  of  care  required  of  the  plaintiff  being  limited 
by  his  capacity  and  circumstances.^ 

§  95.  Under  the  plea  of  son  assault  demesne,  in  excuse,  with  the 
general  replication  of  de  injuria,  etc.,  the  burden  of  proof  is  on  the 
defendant,  who  will  be  bound  to  show  that  the  plaintiff  actually 
committed  the  first  assault ;  and,  also,  that  what  was  thereupon 
done  on  his  own  part,  was  in  the  necessary  defence  of  his  person.* 
And  even  violence  may  be  justified  where  the  safety  of  the  person 
was  actually  endangered.^  If  the  defendant's  battery  of  the  plain- 
tiff was  excessive,  beyond  what  was  apparently  necessary  for  self- 
defence,  it  seems  by  the  American  authorities,  that  this  excess  may 
be  given  in  evidence  under  the  replication  of  de  injuria,  without 
either  a  special  replication  or  a  new  assignment.*  For,  in  such  a 
case,  the  question  is  as  to  the  degree  and  proportion  of  the  beating 
to  the  assault.  But  if  the  plaintiff's  answer  to  the  plea  of  son  as- 
sault demesne  consists  of  an  admission  of  the  fact  and  a  justification 
of  it,  this  cannot  by  the  English  authorities  be  shown  in  evidence 
under  the  replication  de  injuria,  but  must  always  be  specially  re- 
plied.^ If  the  declaration  contains  but  one  count,  to  which  son  as- 
sault demesne  is  pleaded,  without  the  general  issue,  the  defendant 
may  give  evidence  of  an  assault  by  the  plaintiff  on  any  day  pre- 
vious to  the  day  alleged  in  the  declaration  ;  and  if  the  plaintiff 
cannot  answer  the  assault  so  proved,  the  defendant  will  be  entitled 
to  a  verdict.^  But  if  the  general  issue  is  pleaded,  or  the  declara- 
tion contains  charges  of  several  assaults,  the  plaintiff  is  not  thus 
restricted,  and  the  defendant's  evidence  must  apply  to  the  assault 
proved.'^ 

§  96.  In  regard  to  the  replication  of  de  injuria,  the  general  rule 
is,  that,  as  it  puts  in  issue  only  the  matter  alleged  in  the  plea, 

1  See  Robinson  v.  Cone,  3  Am.  Law  J.  220,  221 ;  Dauce  v.  Luce,  1  Kcb.  884 ;  Sii 
313,  N.  S.,  where  the  subject  is  fully  con-  246,  S.  C;  1  Chitty  on  PI.  512,  n.,  545, 
sidcred  by  Redfield,  J.  627  ;    [Brown  v.  Gordon,  1    Gray,   182  ;] 

2  Crogate's  case,  8  Co.  66 ;  Cockerill  v.  [*  Mellen  v.  Thompson,  32  Vt.  407.] 
Armstrong,  Willcs,  99 ;  Jones  v.  Kitchen,  ^  Penn  v.  Ward,  2  Or.  Mees.  &  Rose. 
1  B.  &  P.  79,  80;  Reece  v.  Taylor,  4  Nev.  338 ;  Dale  v.  Wood,  7  J.  B.  Moore,  33; 
&  M.  469  ;  Guy  v.  Kitchener,  2  Str.  1271  ;  Pigffott  v.  Kemp,  1  Cr.  &  Mees.  197  ;  Sclby 
1  Wils.  171,  S.  C. ;  Phillips  v.  Howgate,  v.  Bardons,  3  B.  &  Aid.  1 ;  1  Cr.  &  Mees. 
4  B.  &  Aid.  220 ;  Timothy  v.  Simpson,  1  500 ;  Bowen  v.  Parry,  1  C.  &  P.  394  ;  Lamb 
Cr.  M.  &  R.  757.  v.  Burnett,  1    Cr.  &  Jer.  291  ;  2  Chitty's 

8  Coclccroft  r.  Smith,  2  Salk.  642;  Bull.  Prec.  731,  732;  Oakes  v.  Wood,  3  M.  & 

N.  P.  18.  W.  150. 

*  Curtis  V.  Carson,  2  N.  Hamp.  539.   See  ^  Randle  v.  Webb,  1  Esp.  R.  38  ;  Gib- 

where  the  plea  is  moderate  castigavit ;  Han-  son  v.  Fleming,  1  Har.  &  J.  483 

nen  v.  Edes,   15   Mass.  347;   or,  molliter  ">  Downs   v.   Skrymsher,  Brownl.  233; 

Planus  imposuit;  Bennett  v.  Appleton,  25  Bull.  N.  P.  17  ;  1  Steph.  N  P.  222. 
Wend.  371.    See  also  I  St^-ph.  N.  P.  216, 


78  LAW   OF   EVIDENCE.  [PART  I 

nothing  can  be  given  in  evidence  nnder  it  which  is  beyond  ar 
out  of  the  plea.  The  plaintiff  cannot  go  into  proof  of  new  matte 
tending  to  show  that  the  defendant's  plea,  though  true,  does  m 
justify  the  actual  injury.  He  cannot,  for  example,  show  that  tl 
defendant,  being  in  his  house,  abused  his  family  and  refused 
depart,  and  upon  his  gently  laying  hands  on  him  to  put  him  on 
the  defendant  furiously  assaulted  and  beat  him.^  So,  if  the  d 
fendant  justifies  in  defence  of  his  master,  the  plaintiff  cannc 
under  this  issue,  prove  that  his  own  assault  of  the  master  w; 
justifiable.^  So,  if  the  defendant,  being  a  magistrate,  justifies  t 
assault  and  imprisonment  as  a  lawful  commitment  for  a  bailab 
offence,  the  plaintiff  cannot  show,  under  this  issue,  that  sufficie; 
bail  was  offered  and  refused.^ 

§  97.  To  support  the  plea  of  moderate  castigavit,  the  defenda 
must  show  that  the  plaintiff  was  his  apprentice,  by  producing  tl 
indentures  of  apprenticeship.  He  must  also  produce  evident 
of  misbehavior  on  the  part  of  the  plaintiff,  sufficient  to  justify  tl 
correction  given.^  The  same  rules  apply,  where  the  relation 
that  of  parent  and  child,  or  jailer  and  prisoner,  or  schoolmast 
and  scholar,^  or  shipmaster  and  seaman.  It  must  also  be  &\\o\\ 
that  the  correction  was  reasonable  and  moderate  ;  though  in  tl 
case  of  shipmasters,  if  the  chastisement  was  salutary  and  merite 
and  there  was  no  cruelty,  or  use  of  improper  weapons,  the  adrr 
ralty  courts  will  give  to  the  terms  "  moderate  correction  "  mo 
latitude  of  interpretation.^ 

§  98.  Under  the  plea  of  molliter  manus  imposuit,  the  matte 
justified  are  of  great  variety  ;  bxit  they  will  be  found  to  fall  und^ 
one  of  these  general  heads,  namely,  the  prevention  of  some  u 
lawful  act,  or  resistance,  for  some  lawful  cause.  If  the  force  w; 
applied  to  put  tlie  plaintiff  out  of  the  defendant's  house,  into  wliic 
he  had  unlawfully  entered,  or  to  resist  his  unlawful  attempt 
enter  by  force,  it  is  sufficient  to  show  the  unlawfulness  of  the  e. 
try,  or  of  the  attempt,  without  showing  a  request  to  depart.  Bi 
if  the  entry  was  lawful,  as  if  the  house  were  public,  or,  beii 

1  King  V.  Phippard,  Carth.  280.  child,  placed  with  a  master  in  loco  parent 

2  Webber    v.   Liversuch,    Peake's    Ad.     the    ordinary   domestic    discipline   won 
Cas.  .51.  probably  be  quite  justifiable. 

8  Sayre  v.  E.  of  Rochford,  2  W.  Bl.  1165.  M  Hawk.  P.  C.  c.  60,  §  23. 

*  1  Saund.  on  PI.  &  Ev.  107.   In  the  case  «  Watson  v.  Christie,  2  B.  &  P.  22- 

of  a  hired  servant,  the  right  to  inflict  cor-  Brown  v.  Howard,  14  Johns.  119  ;  Tho 

poral  puni-shment,  by  way  of  discipline  or  v.  White,  1    Pet.  Adm.  R.  173;   Samps< 

punishment,  is  denied.    Matthews  v.  Terry,  v.  Smith,  15  Mass.  365. 
10  Conn.  455.     If  the  servant  is  a  young 


PART  IV.]  ASSAULT  AND   BATTERY.  79 

private,  if  be  entered  upon  leave,  whether  given  expressly  or 
tacitly  and  by  usage,  there  it  is  necessary  to  show  that  he  was 
requested  to  depart,  and  unlawfully  refused  so  to  do,  therefore, 
the  application  of  force  can  be  justified.^  And  in  all  these  cases, 
to  make  good  the  justification,  it  must  appear  that  no  more  force 
was  employed  than  the  exigency  reasonaWy  demanded.^  If  there 
was  a  wilful  battery,  and  it  is  justified,  the  defendant  must  show 
that  the  plaintiff  resisted  by  force,  to  repel  whicli  the  battery  was 
necessary.  And  whenever  the  justification  is  founded  on  a  de- 
fence of  the  possession  of  property,  it  is,  ordinarily,  sufficient  for 
the  defendant  to  show  his  lawful  possession  at  the  time,  without 
adducing  proof  of  an  indefeasible  title  ;  ^  and  in  such  cases  a 
temporary  right  of  possession  is  sufficient.  Thus,  where  no  per 
son  dwelt  in  the  house,  but  the  defendant's  servant  had  the  key, 
to  let  himself  in  to  work,  this  was  held  sufficient  evidence  of  the 
defendant's  possession,  as  against  every  one  but  the  owner.*  So, 
where  a  county  jail,  the  title  to  which  was  vested  by  statute  in  the 
justices  of  the  county,  was  in  the  actual  occupancy  of  the  stew- 
ards of  a  musical  festival,  as  it  had  been  on  similar  occasions,  as 
they  occurred,  for  several  years,  but  there  was  no  evidence  of  any 
express  permission  from  the  justices,  yet  this  was  held  a  sufficient 
possession,  against  a  person  intruding  himself  into  the  hall  with- 
out leave.^ 

§  99.  If  the  assault  and  battery  is  justified,  as  done  to  preserve 
the  peace,  or  to  prevent  a  crime,  the  defendant  must  show  that  the 
plaintiff  was  upon  the  point  of  doing  an  act,  which  would  have 
broken  the  peace,  or  would  manifestly  have  endangered  the  person 
of  another,  or  was  felonious ;  ^  and  if  the  interference  was  to  pre- 
vent others  from  fighting,  he  must  sliow  tliat  he  first  required 
them  to  desist.''  If  the  trespass  justified  consisted  \A  arresting 
the  plaintiff  as  a  felon  without  warrant,  the  defendant  must  prove, 

1  Esp.  on  Evid.  155,  156;  Gregory  v.  ^  Skeville  v.  Averv,  Cro.  Car.  138;  Esp. 
Hill,  8  T.  R.  299;  Bull.  N.  P.  18,  19;  on  Evid.  156;  1  Saund.  on  PI.  &  Evid. 
Green  v.  Goddard,  2  Salic.  641 ;  Williams  107.  [*  A  right  to  the  possession  of  real 
V.  Jones,  2  8tra.  1049;  Green  v.  Bartram,  estate  will  not  justify  an  assault  and  bat- 
4  C.  &  P.  308 ;  Rose  v.  Wilson,  1  Bing.  tery  to  obtain  the  same.  Possession  ia 
353  ;  8  J.  B.  Moore,  362,  S.  C. ;  Weaver  fact  justifies  the  use  of  violence,  if  neces- 
V.  Bush,  8  T,  R.  78 ;  Tullav  v.  Reed,  1  sary,  to  defend  it.  Parsons  v.  Brown,  15 
C.  &  P.  6;  Adams  v.  Freeman,  12  Johns.  Barb.  590.] 

408.  4  Hall  V.  Davis,  2  C.  &  P.  33. 

2  Imason  v.  Cope,  5  C.  &  P.  193 ;  Esp.         ^  Thomas  v.  Marsh,  5  C.  &  P.  596. 
on  Evid.  156 ;  Eyre  v.  Norsworthy,4  C.  &         ^  Handcock  v.  Baker,  2  B.  &  P.  260. 
P.  502  ;  Simpson  v.  Morris,  4  Taunt.  821 ;         ^  Hawk.  P.  C.  b.  1,  .h.  31,  §  49 ;  1  Eastii 
Bush  V.  Parker,  1  Bing.  N.  C.  72.  P.  C.  304 


80  LAW   OF   EVIDENCE.  [PART  H 

either  that  a  felony  was  committed  by  the  plaintiff,  in  his  presence 
or  that  the  plaintiff  stood  indicted  of  felony  ;  or  that  he  wa 
found  attempting  to  commit  a  felony  ;  or  that  he  had  actuall 
committed  a  felony,  and  that  the  defendant,  acting  with  goo 
intentions,  and  upon  such  information  as  created  a  reasonable  an 
probable  ground  of  suspicion,  apprehended  the  party,  in  order  t 
carry  him  before  a  magistrate .^  It  seems  also  to  have  been  helc 
that  the  defendant  may  in  like  manner  justify  the  detention  o 
the  plaintiff,  as  found  walking  about  suspiciously  in  the  nigh 
until  he  gave  a  good  account  of  himself ;  ^  or  because  he  was 
common  and  notorious  cheat,  going  about  the  country  and  chea 
ing  by  playing  with  false  dice  and  other  tricks,  being  taken  in  tl 
fact,  to  be  carried  before  a  magistrate  ;  or  that  he  was  found  i 
the  practice  of  other  offences,  in  the  like  manner  scandalous  ar 
prejudicial  to  the  public.^ 

§  100.  It  is  further  to  be  observed,  that,  whenever  the  defen 
ant  justifies  the  laying  of  hands  on  the  plaintiff,  to  take  him  in 
custody  as  an  offender,  he  ought  to  be  prepared  with  evidence 
show  that  he  detained  him  only  until  an  officer  could  be  sent  f 
to  take  charge  of  him,  or  that  he  proceeded  without  unnecessa 
delay  to  take  him  to  a  magistrate,  or  peace-officer,  or  otherwise 
deal  with  him  according  to  law.* 

Defences  by  magistrates  and  other  officers  will  be  treated  hei 
after,  under  appropriate  heads. 

1  Hawk.  P.  C.  b.  2,  ch.  12,  §§  18, 19  ;  4  Bl.  this  is  now  doubted,  unless  the  defcndan 

Coram.  293  ;  1  East,  P.  C.  300, 301  ;  1  Russ.  a  peace  officer.    1  East,  P.  C.  303  ;  1  Ru 

on  Crimes,  723  -  72.T ;  1  Deacon, Crim.  Law,  on  Crimes,  726,  727. 
48,  49;  Ledwith  v.  Catchpole,  Cald.  291,         ^  Hawk.  P.  C.  b.  2,  ch.  12,  §  20  ;  Ho 

per  Ld.  Mansfield  ;  Rex  v.  Hunt,  I  Mood,  day    v.  Oxenbridge,   Cro.  Car.  234  ; 

Cr.  Cas.  93  ;  Stonchouse  v.  Elliott,  6  T.  R.  Jones,  249,  S.  C. ;  2  Roll.  Abr.  546. 
315.  *  Esp.  on  Evid.  158;  Rose  v.  Wilsoi 

3  Hawk.  P.  C.  b.  2,  ch.  12,  §  20.    But  Bing.  353. 


PART  IV.]  ASSUMPSIT.  81 


ASSUMPSIT. 

'  §  101.  Matters  only  particularly  pertaining  to  this  form  of  action  here  considered. 

102.  Assumpsit  is  founded  on  an  undertaking  not  under  seal. 

103.  Plaintiff  cannot  recover  upon  the  common  counts  when  there  is  a  special  con- 

tract still  subsisting. 

104.  Three  general  rules  embracing  the  law  on  this  subject 

105.  Proof  of  consideration  in  actions  upon  the  common  counts  ordinarily  requires 

proof  of  all  the  circumstances  of  the  transaction. 

106.  Damages  generally  not  recoverable  beyond  the  ad  damnum. 

107.  In  actions  upon  the  common  counts  for  goods  sold,  work  and  materials  fur- 

nished, money  lent,  and  money  paid,  request  by  defendant  must  be  proved. 

108.  Jury  may  infer  a  request  from  knowledge  and  acquiescence,  and  even  contrary 

to  the  fact,  on  the  ground  of  legal  obligation  alone. 

109.  General  rule  that  an  entire  stranger  to  the  consideration  cannot  sue  in  his  own 

name. 

110.  Non-joinder  of  plaintiffs,  ground  of  nonsuit;  of  defendants,  must  he  plead  in 

abatement. 

111.  Plaintiff  must  show  that  contract  is  not  unlawful.    How  far  money  paid  on  an 

executory  illegal  contract  can  be  recovered,  considered. 

112.  Proof  sustaining  count  for  money  lent. 

113.  Proof  sustaining  count  for  money  paid. 

114.  Possession  of  written  order  of  defendant  in  favor  of  third  person,  prima  facie 

evidence  of  payment.     Where  there  is  no  express  order  or  request,  ordinarily 
suflicient  to  show  reasonable  cause. 

115.  General  rule  that  wrongdoers  can  have  no  contribution  one  from  another. 

116.  Wliat  proof  required  when  money  sought  to  be  recovered  has  been  paid  under 

a  judgment. 

117.  Proof  to  sustain  count  for  money  had  and  received. 

118.  What  things  are  treated  as  money. 

119.  Money  delivered  to  defendant  for  particular  purpose,  and  not  applied,  may  be 

recovered  under  count  for  money  had  and  received. 

1 20.  Proof  that  defendant  obtained  the  money  by  fraud  supports  count  for  money 

had  and  received.     Tort  may  be  waived,  and  assumpsit  upon  the  money 
counts  sustained,  in  many  cases. 

121.  Money  obtained  by  duress,  extortion,  or  undue  advantage,  recovered  under 

count  for  money  had  and  received. 

122.  And  money  paid  upon  forged  instrument. 

123.  And  money  paid  under  a  mistake  of  facts. 

124.  And  money  paid  upon  a  consideration  which  has  failed. 

125.  And,  in  some  instances,  money  received  by  an  agent. 

126.  E\'idence  necessary  to  support  an   action  upon  an  account  stated,  lonsid 

ered. 
VOL.  II.  6 


82  LAW   OF   EVIDENCE.  [PART  IV. 

127.  Original  form  or  evidence  of  the  debt  not  important  under  count  upon  an 

account  stated. 

128.  Not  material  when  the  admission  was  made.     Admission  not  conclusive; 

must  be  made  to  opposite  party,  or  his  agent. 

129.  Plaintiff  claiming  in  particular  character  need  not  prove  that  character  under 

count  upon  account  stated. 
129a.  Under  the  money  counts,  plaintiff  not  proving  denomination  of  money  paid 
or  received,  smallest  denomination  will  be  presumed. 

130.  Answer  in  assumpsit  is  either  plea  in  abatement,  general  issue,  or  plea  in 

bar. 

131.  Plea  in  abatement  must  be  supported  as  to  the  whole  declaration  to  which  it 

is  pleaded,  or  it  fails  altogether. 

132.  Proof  necessary  to  support  this  plea,  in  answer  to  a  count  for  goods  sold. 

133.  Practice  in  reference  to  a  plea  of  non-joinder. 

134.  Proof  of  dormant  or  secret  partnership  will  not  sustain  plea  of  non-joinder. 

135.  Almost  all  defences  may  be  made  under  the  general  issue.    Illustrations. 

136.  How  far  failure  or  want  of  consideration  is  a  defence,  considered. 

136a.  Plaintiff,  failing  to  perform  tlie  wliole  of  an  entire  contract,  cannot  recover  on 
the  contract,  but  may  on  general  assumpsit,  actual  value  of  his  labor,  &c., 
accepted  by  defendant.] 

§  101.  Under  this  head  it  is  proposed  to  consider  only  those 
matters  which  pertain  to  this  form  of  action,  for  whatever  cause  it 
may  be  brought,  and  to  the  common  counts ;  referring,  for  the 
particular  causes  of  special  assumpsit,  such  as  Bills  of  Exchange, 
Insurance,  &c.,  and  for  particular  issues  in  this  action,  such  as 
Infancy,  Payment,  and  the  like,  to  their  appropriate  titles. 

§  102.  The  distinction  between  general  or  implied  contracts  and 
special  or  express  co7itracts,  lies  not  in  the  nature  of  the  undertak- 
ing, but  in  the  mode  of  proof.  The  action  of  assumpsit  is  founded 
upon  an  undertaking,  or  promise  of  the  defendant,  not  under  seal ; 
and  the  averment  always  is,  that  he  undertook  and  promised  tc 
pay  the  money  sued  for,  or  to  do  the  act  mentioned.  The  evi- 
dence of  the  promise  may  be  direct,  or  it  may  be  circumstantial, 
to  be  considered  and  weighed  by  the  jury  ;  or  the  promise  may  be 
imperatively  and  conclusively  presumed  by  law,  from  the  existing 
relations  proved  between  the  parties  ;  in  which  case,  the  relatior 
being  proved,  the  jury  are  bound  to  find  the  promise.  Thus 
where  the  defendant  is  proved  to  have  in  his  hands  the  money  of 
the  plaintifiF,  which,  ex  cequo  et  bono,  he  ought  to  refund,  the  la^^ 
conclusively  presumes  that  he  has  promised  so  to  do,  and  the  jurj 
are  bound  to  find  accordingly  ;  and,  after  verdict,  the  promise  is 
presumed  to  have  been  actually  proved. 

§  103.    The  law,  however,  presumes  a  promise  only  where  i1 


PART  IV.]  ASSUMPSIT.  83 

does  not  appear  that  there  is  any  special  agreement  between  the 
parties .1  For  if  there  is  a  special  contract,  which  is  still  open  and 
unrescinded,  embracing  the  same  subject-matter  with  the  common 
counts,  the  plaintiff,  though  he  should  fail  to  prove  his  case  under 
the  special  count,  will  not  be  permitted  to  recover  upon  the  com- 
mon counts.2  Thus,  where  the  plaintiff  paid  seventy  guineas  for 
a  pair  of  coach-horses,  which  the  defendant  agreed  to  take  back 
if  the  plaintiff  should  disapprove  them  ;  and  being  dissatisfied 
with  them,  he  offered  to  return  them,  but  the  defendant  refused 
to  receive  them  back  ;  it  was  held  that  the  plaintiff  could  not 
recover  the  amount  paid  in  an  action  for  money  had  and  received, 
but  should  declare  upon  the  special  contract.^  So,  where  a  sea- 
man shipped  for  a  voyage  out  and  home,  with  a  stipulation  that 
his  wages  should  not  be  paid  until  the  return  of  the  ship,  and  he 
was  wrongfully  discharged  in  a  foreign  port ;  it  was  held  that  he 
could  not  recover  upon  the  common  counts,  but  must  sue  for 
breach  of  the  special  contract,  it  being  still  in  forced  But  though 
there  is  a  count  on  a  special  agreement,  yet  if  the  plaintiff  fails 
altogether  to  prove  its  existence,  he  may  then  proceed  upon  the 
common  counts.^ 

§  104.  The  law  on  this  subject  may  be  reduced  to  these  three 
general  rules. ^  (1.)  So  long  as  the  contract  continues  executory, 
the  plaintiff  must  declare  specially  ;  but  when  it  has  been  executed 
on  his  part,  and  nothing  remains  but  the  payment  of  the  price  in 
money,  by  the  defendant,  which  is  nothing  more  than  tlie  law 
would  imply  against  him,  the  plaintiff  may  declare  generally, 
using  the  common  counts,  or  may  declare  specially,  on  the  original 
contract,  at  his  election.^     If  the  mode  of  payment  was  any  other 

1  Toussaint  v.  Martinnant,  2  T.  R.  105,  monev  counts.  Hemenway  v.  Smith,  28 
per  BuUer,  J. :  Cutter  v.  Powell,  6  T.  R.     Vt.  701.] 

320.  *  Hulls  V.  Heishtman,  2  East,  145. 

2  Cooko  V.  Munstone,  1  New  Rep.  365  ;  &  Harris  v.  Oke,  Bull.  N.  P.  139  ;  Paine 
Bull.  N.  P.  139  ;  Lawes  on  Assumpsit,  pp.  r.  Bacomb,  2  Doug.  651 ;  1  New  Rep.  355, 
7,  12;  Young  u.  Preston,  4  Cranch,  239;  356. 

Russell  V.  South  Britain  Society,  9  Conn.  «  SeeLaweson  Assumpsit,  p.  2-12.  Seo 

508  ;  Clark  v.  Smith,  14  Johns.  326  ;  Jen-  also  Mead  v.  Degolyer,  16  Wend.  637,  638, 

nings   V.  Camp,  13  Johns.  94;  Wood  v.  per  Bronson,  J.;   Cooke  v.  Munstone,  1 

Edwards,  19  Johns.  205  ;   [Sargent  v.  Ad-  New  Rep.  355  ;  Bull.  N.  P.  139  ;  Tattle  v. 

ams,  3  Gray,  72  ;  Streeter  v.  Sumner,  19  Mavo,  7  Johns.  132;  Robertson  v.  Lynch, 

N.  H.  516.]  18  Johns.  451  ;  Linningdale  v.  Livingston, 

8  Weston  V.  Downes,  1  Doug.  23  ;  Power  10  Johns.  36  ;  Kcyes  :>.  Stone,  5  Mass.  391 ; 

r.  Wells,  Cowp.  818;  Towers  v.  Barrett,  Jennings  i>.  Camp,  13  Johns.  94 ;  Clark  i;. 

1  T.  R.  133.     [*  Damages  sustained  by  the  Smith,  14  Johns.  326.                               _ 

plaintiff,  from  the  non-performance,  by  the  "^  Gordon  v.  Martin,  Fitzg.  303;  1  aina 

defendant,  of  an   executory   contract  for  t;.  Bacomb,  2  Doug.  651,  cited  1  New  Kep. 

the  purchase  of  property  from   him,  can-  355,  356  ;  Streeter  v.  Horlock,  1  Bing.  34, 

not  be  recovered  for  under  the  general  37 ;  Study  v.  Sanders,  5  B.  &  C.  628,  per 


S4  LAW   OF   EVIDENCE.  [PABT  IV. 

tlian  in  money,  the  count  must  be  on  the  orighial  contract.  And 
if  it  was  to  be  in  money,  and  a  term  of  credit  was  allowed,  the 
action,  though  on  the  common  counts,  must  not  be  brought  until 
the  term  of  credit  has  expired.^  This  election  to  sue  upon  the 
common  counts,  where  there  is  a  special  agreement,  applies  only 
to  cases  where  the  contract  has  been  fully  performed  by  the  plain- 
tiff. (2.)  Where  the  contract,  though  partly  performed,  has  been 
either  abandoned  by  mutual  consent,  or  rescinded  and  extinct  by 
some  act  on  the  part  of  the  defendant.  Here,  the  plaintiff  may 
resort  to  the  common  counts  alone,  for  remuneration  for  what  he 
has  done  under  the  special  agreement.  But  in  order  to  this,  it  is 
not  enough  to  prove,  that  the  plaintiff  was  hindered  by  the  de- 
fendant from  performing  the  contract  on  his  part ;  for  we  have 
just  seen,  that  in  such  case  he  must  sue  upon  the  agreement  itself. 
It  must  appear,  from  the  circumstances,  that  he  was  at  liberty  to 
treat  it  as  at  an  end.^  (3.)  Where  it  appears,  that  what  was 
done  by  the  plaintiff  was  done  under  a  special  agreement,  but  not 
in  the  stipulated  time  or  manner,  and  yet  was  beneficial  to  the 
defendant,  and  has  been  accepted  and  enjoyed  by  him.  Here, 
the  plaintiff  cannot  recover  upon  the  contract,  from  which  he  has 
departed,  yet  he  may  recover,  upon  the  common  counts,^  for  the 
reasonable  value  of  the  benefit  which,  upon  the  whole,  the  de- 
fendant has  derived  from  what  he  has  done.* 

Holroyd,  J. ;  Tuttle  v.  Mayo,  7  Johns.  132  ;  Johns.  94  ;  Jewell  v.  Scroeppel,  4  Co  wen, 

Robertson  v.  Lynch,  18  Johns.  451  ;  Felton  R.  .564.     If  the  contract  has  been  performed 

r.  Dickenson,  10  Mass.  287  ;  Baker  r. Corey,  as  far  as  it  extended,  but  something  be- 

19  Pick.  496;  Pitkin  v.  Frink,  8  Met.  16;  yond  it  has  been  done,  as,  if  a  building 

[New  Hampshire,   &c.  Ins.  Co.  i\  Hunt,  were  erected,  with  some  additions  not  speci- 

10  Foster  (N.  H.),  219;  Hale  v.  Handy,  6  fied  in    the  written    agreement,  the   party 

lb.  206;  Wright  v.  Morris,  15  Ark.  444.]  must  declare  on  the  special  agreement,  as 

[*  A  declaration  alleging  a  promise  by  the  far  as  it  goes,  and  in  the  common  counts 

defendant  to  pay  the  plaintiff  a  sum  of  for  the  excess.    Pepper  v.  Burland,  Peake'.s 

money  is  supported  by  proof  of  a  promise  Cas.  103  ;  Dunn  u.  Body,  1  Stark.  R.  175; 

to  do  certain  other  things,  and  pay  the  Robson  v.  Godfrey,  Id.  220. 

money,  if  the  payment  of  the  money  is  all  ^  Taft  v.  Montague,  14  Mass.  282.    [*Tn 

that   remains   to  be  done.      Holbrook    v.  cases  where,  notwithstanding   the   breach 

Dow,  1   Allen,  397.]  of  a  special  contract,  the  party  in  fault  can 

1  Robson  V.  Godfrey,  1  Stark.  R.  220  ;  still  recover  upon  a  qnanhim  meruit,  the 
[Moorhead  >;.  Fry,  24  Penn.  State  R.  (12  special  contract  is  sometimes  competent 
llarris),  37.]  evidence  upon   the  question  of  what  the 

2  Giles  V.  Edwards,  7  T.  R.  181  ;  Bum  services  are  reasonably  worth.  Clark  v. 
V.  Miller,  4  Taunt.  745 ;  Hulle  v.  Height-  Gilbert,  32  Barb.  576.  In  Kentucky,  in 
man,  2  East,  145 ;  Linningdale  v.  Livings-  an  action  of  assumpsit  for  labor,  it  is  held, 
ton,  10  Johns.  36;  Raymond  v.  Bearnard,  that  the  jury,  or  the  judge  if  a  jury  has 
12  Johns.  274;  Mead  v.  Dcgolycr,  16  been  waived,  may,  in  the  absence  of  evi- 
Wcnd.  632.  [Canada  v.  Canada,  6  Cush.  dence  of  the  value  of  such  labor,  find  a  ver- 
15.]  diet  for  the  price,  from  their  own  knowledge 

2  Keek's  case,  Bull.  N.  P.  139 ;  Bum  v.  of  the  worth  of  such  labor.  Baum  v.  Wins- 
Miller,  4  Taunt.  745;  Streeter  v.  Horlock,  ton,  3  Met.  (Ky.)  127.]  In  an  action  for 
1   Bing.  34,  37;   Jennings    v.   Camp,   13     work  and  materials,  where  it  appears  thai 


PART  IV.] 


ASSUMPSIT. 


»5 


§  105.  In  all  actions  upon  contracts  not  under  seal,  except  gen- 
erally in  suits  by  indorsees,  it  is  incumbent  on  the  plaintiff  under 
the  general  issue  to  prove  a  consideratmi  ^  for  the  alleged  promise 
of  the  defendant ;  and  this,  in  actions  upon  the  common  counts, 
can  ordinarily  be  done  only  by  proof  of  all  the  circumstances  of 
the  transaction.  Thus,  proof  of  the  relation  of  landlord  and  ten- 
ant is  sufficient  proof  of  consideration  for  a  promise  to  manage 
the  farm  in  a  husband-like  manner.^  And  this  manner  is  proved 
by  evidenoe  of  the  prevalent  course  of  husbandry  in  that  neigh- 
borhood.^ The  same  evidence  will  also,  necessarily,  disclose  a 
privity  existing  between  the  defendant  and  the  plaintiff;  for  if 
the  plaintiff  is  a  stranger  to  the  consideration,  he  cannot  recover.* 


they  were  furnished  pursuant  to  an  express 
contract,  the  plaintiff  must  prove  the  terms 
of  the  contract,  lie  cannot,  in  the  first 
instance,  abandon  the  contract,  and  recover 
on  a  qwmhtm  meruit ;  but  must  prove  its 
terms,  its  fulfihnent,  the  deviations,  if  any, 
and  the  additional  work.  Smith  v.  Smith, 
1  Sandf.  S.  C.  R.  206  [White  v.  Oliver,  36 
Maine  (1  Heath),  92  ;  Davis  v.  Barrington, 
10  Fo-ter  (N.  H.),  517;  Hubbard  v.  Bel- 
den,  1  Williams  ( Vt.),  645 ;  Patrick  v.  Put- 
nam, lb.  759 ;  Bassett  v.  Sanborn,  9  Cush. 
68 ;  Glcason  v.  Smith,  lb.  484.]  [*  See 
Hutcliinson  v.  Cnllum,  23  Ala.  622.] 

1  As  to  what  constitutes  a  sufficient  con- 
sideration, see  21  Am.  Jurist,  257-286; 
1  Stephen's  Nisi  Prius,  pp.  240  -  260 ;  Chit- 
tyon  Contr.  22-25  ;  2  Kent  Comm.  463- 
468  ;  Story  on  Contracts,  eh.  iv.  That  tlie 
entire  consideration  must  be  proved,  see 
ante.  Vol.  1,  §§  66,  67,  68.  [*"An  e.xe- 
cuted  consideration  will  not  support  any 
other  promise  than  that  which  the  law 
implies,  namely,  to  pay  upon  request." 
Storrs,  C.  J.  Bailey  v.  Bussing,  29 
Conn.  5.] 

-  Powley  V.  Walker,  5  T.  R.  373. 

8  Leigh  V.  Hewitt,  4  East,  154. 

*  The  common  counts  are  in  this  form  : 

"  For  that  the  said  (d-sfendant),  on  the 

day  of ,  was  indebted  to  the  plaintiff  in 

the  sum  of "  [if  for  goods  sol'J,  say, 

"  for  goods  then  sold  and  delivered,"  —  or, 
"  bargained  and  sold,"  if  tlie  case  be  so, 
"by  the  plaintiff  to  the  said  (defendant)  at 
his  request,"]  "  and  in  consideration  there- 
of, then  and  there  promised  the  plaintiff  to 
pay  him  that  sum  on  demand.     Yet,"  &c. 

—  [if  for  work  and  maitrials,  say,  "  for  work 
then  done,  and  materials  for  the  same  pro- 
^nded,  by  the  plaintiff  for  the  said  (defend- 
ant) at  his  request," — ] 

—  if  money  lent,  say,  "for  money  then  lent 
by  the  plaiixuff  to  the  said  (defendant)  at 
his  request,'' — ] 


—  if  for  money  paid,  say,  "  for  money  then 
paid  by  the  plaintiff  for  the  use  of  the  said 
(defendant)  at  his  request,"  —  ] 

—  [if  for  money  received,  say,  "  for  money 
then  received  by  the  said  (defendant)  for  the 
use  of  the  plaintiff," —  ] 

—  if  upon  an  insiniul  computassenf,  say,  "  for 
money  found  to  be  due  from  the  said  (de- 
fendant) to  the  plaintiff  upon  an  account 
then  stated  between  them,"  —  ] 

These  counts  may  now,  by  the  new  rules 
of  practice  in  the  English  courts,  and  by 
those  of  some  of  the  American  States,  be 
consolidated  into  one.  Indeed,  it  is  con- 
ceived, tliat  they  may  be  consolidated  by 
the  general  principles  of  the  law  of  plead- 
ing ;  and  it  was  so  practised  in  Massachu- 
setts, for  many  years.  The  consolidated 
count  may  be  as  follows :  "  For  that  the 

said  (defendant)  on  the day  of , 

was  indebted  to  the  plaintiff  in  the  sum  of 

for  goods  then  sold  and  delivered  by 

the  plaintiff  to  the  said  (defendant)  at  his 

request ;  and  in  the  sum  of for  work 

then  done,  and  materials  for  the  same  pro- 
vided, by  the  plaintiff  for  the  said  (defend- 
ant) at  his  request ;  and  in  the  sura  of 

for  money  then  lent  by  the  plaintiff 

to  the  said  (defendant)  at  his  request ;  and 

in  the  sum  of for  money  then  paid  by 

the  plaintiff  for  the  use  of  the  said  (defend- 
ant) at  his  request ;  and  in  the  sum  of  — 
for  money  then  received  by  the  said  (de 
fendant)  for  the  use  of  the  plaintiff;  and  in 

the  sum  of for  money  found  to  be  due 

from  the  said  (defendant)  to  the  plaintiff 
upon  an  account  then  stated  between  them  ; 
and,  in  consideration  thereof,  then  and 
there  promised  the  plaintiff  to  pay  him  the 
several  moneys  aforesaid  upon  demand. 
Yet  the  said  (defendant)  has  never  paid 
any  of  said  moneys,  but  wholly  neglects  to 
do  so."  See  1  Chitty's  Prec.  p.  43,  a,  b; 
Reg.  Sup.  Jud.  Court,  Mass.  1836,  p.  44. 
Wliere  the  declaration  alleges  a  debt  for 


86  LAW   OF   EVIDENCE.  [PART  IV. 

And  in  all  these  cases  the  plaintiff  may  recover  as  much  as  he 
proves  to  be  due  to  him,  within  the  sum  mentioned  in  the  count. 
If  the  contract  is  in  writing,  and  recites  that  a  valuable  consider- 
ation has  been  received,  this  is  ^:)rim(f  facie  evidence  of  the  fact, 
and  the  necessity  of  controlling  it  is  devolved  on  the  defendant. 
If  the  action  is  founded  on  a  document  or  memorandum,  usually 
circulating  as  evidence  of  property,  such  as  a  bank-check,  or  the 
like,  proof  of  the  usage  and  course  of  business  may  suffice  as  evi- 
dence of  the  consideration,  until  this  presumption  is  outweigheil 
by  opposing  proof. 

§  106.  As  the  general  issue  is  a  traverse  of  all  the  material  al- 
legations in  the  declaration,  it  will  be  further  necessary  for  the 
plaintiff,  under  this  issue,  to  prove  all  the  other  material  facts 
alleged  ;  such  as  the  performance  of  conditions  precedent,  if  any, 
on  his  own  part ;  notice  to  the  defendant ;  request ;  where  these 
are  material,  and  the  like  ;  together  with  the  amount  of  damages 
sustained  by  the  breach  of  the  agreement.  Damages  cannot,  in 
general,  be  recovered  beyond  the  amount  of  the  ad  damnum  laid 
in  the  declaration  ;  but  in  actions  for  torts  to  personal  chattels, 
the  jury  are  not  bound  by  the  value  of  the  goods,  as  alleged  in  the 
count,  but  may  find  the  actual  value,  if  it  do  not  exceed  the  ad 
damnum} 

§  107.  In  actions  upon  the  common  counts  for  goods  sold,  work 
and  materials  furnished,  money  lent,  and  money  paid,  a  request 
by  the  defendant  is  material  to  be  proved  ;  ^  for,  ordinarily,  no 
man  can  make  himself  the  creditor  of  another  by  any  act  of  his 

work  and  labor,  and  a  debt  for  goods  sold,  alleged  or  proved  to  have  been  caused  by 
&c.,  with  one  general  promise  to  pay,  the  tortious  acts,  which  would  have  enabled  the 
statement  of  each  debt  is  regarded  as  a  plaintiff  to  maintain  an  action  ex  delicto. 
separate  count ;  but  where  there  is  only  Rich  v.  Jones,  9  Cush.  329.] 
one  statement  of  debt,  though  founded  on  ^  It  has,  however,  recently  been  held, 
several  considerations,  it  is  one  count  only,  that,  in  an  indebitatus  assumpsit  for  money 
Morse  v.  James,  11  M.  &  W.  831.  [*  If  lent,  and  perhaps  in  a  count  for  goods  sold 
A  receive  property  from  C,  and,  in  consid-  and  delivered,  a  request  need  not  he  alleged, 
eration  thereof,  promise  C  to  convert  it  into  though  it  is  otherwise  in  a  count  for  money 
money,  and  to  pay  a  part  of  tlie  proceeds  paid.  Victors  v.  Davis,  1  Dowl.  &  L.  984. 
to  B,  the  latter  may,  after  A  has  converted  In  those  cases,  a  request  is  involved  in  the 
the  property  into  money,  maintain  assump-  nature  of  tiie  transaction.  [Where  corn  is 
sit  for  money  had  and  received  against  A  sold,  and  is  left  in  a  heap  with  corn  of  the 
for  the  sum  stipulated  to  l)e  paid  him.  vendor  in  the  possession  of  the  vendor,  the 
Phelps  V.  Conant,  30  Vt.  277.]  purchaser  cannot  uuiintain  assumpsit  for 
1  Steph.  on  PI.  318;  Hutchins  v.  Ad-  its  value,  no  express  promise  being  shown, 
ams,  3  Greenl.  174;  Pratt  v.  Thomas,  Waldron  v.  Chase,  37  Maine,  414.  Nor 
Ware's  Hep.  427  ;  The  Jonge  Rastiaan,  5  will  assumjisit  lie  for  goods  sold  and  de- 
Rob.  Adm.  322.  [And  where  the  declara-  livered,  unless  there  has  been  a  delivery. 
tion  contains  proper  counts  in  assumpsit,  Evans  v.  Harris,  19  Barb.  416;  Doremua 
the  action  can  be  maintained,  and  it  is  im-  v.  Howard,  3  Zabr.  390  ;  Messcr  v.  Wood- 
material  whether  the  breach  is  or  is  not  m.an,  2  Foster  (N.  H.),  389.] 


PART  IV.] 


ASSUMPSIT. 


87 


own,  unsolicited,  and  purely  officious.  Nor  is  a  mere  moral  obli' 
ffation,  in  the  ethical  sense  of  the  term,  without  any  pecuniary 
benefit  to  the  party,  or  previous  request,  a  sufficient  consideration 
to  support  even  an  express  promise  ;  unless  where  a  legal  obliga- 
tion once  existed,  which  is  barred  by  positive  statute,  or  rule  of 
law,  such  as  the  statute  of  limitations,  or  of  bankruptcy,  or  the 
law  of  infancy,  coverture,  or  the  like.'*  But  where  the  act  done  is 
beneficial  to  the  other  party,  wliether  he  was  himself  legally  bound 
to  have  done  it  or  not,  his  subsequent  express  promise  will  be 
binding ;  and  even  his  subsequent  assent  will  be  sufficient  evi- 
dence, from  which  the  jury  may  find  a  previous  request,  and  he 
will  be  bound  accordingly .^     Thus,  where  an  illegitimate  child 


1  Chittv  on  Contracts,  p.  40-42  ;  Story 
on  Contr."§  143;  1  Steph.  N.  P.  246-249  ; 
Eastwood  V.  Kenyon,  1 1  Ad.  &  El.  438 ; 
Ferrers  v.  Costello,  1  Longf.  &  Towns, 
292;  [Mellen  v.  Whipple,  1  Gray,  317.] 
So,  where  the  drawer  of  a  bill  of  exchange 
had  not  been  duly  notified  of  its  dishonor, 
but  nevertheless  promised  the  holder  that 
he  would  pay  it,  the  promise  was  held  bind- 
ing. Rogers  v.  Stephens,  2  T.  R.  713; 
Lundie  v.  Robertson,  7  East,  231  ;  Story 
on  Kills,  §  320.  See  also  Duhammel  v. 
Pickering,  2  Stark.  R.  90.  The  nature  of 
the  moral  obligation  referred  to  in  the  text 
is  thus  stated  in  a  lucid  and  highly  instruc- 
tive series  of  articles  on  the  Law  of  Con- 
tracts, attributed  to  Mr.  Justice  Metcalf. 
"  It  is  fi'eqnently  asserted  in  the  books,  that 
a  moral  obligation  is  a  sufficient  considera- 
tion for  an  express  promise,  though  not 
for  an  implied  one.  The  terms  '  moral  ob- 
ligation,' however,  are  not  to  be  understood 
in  their  broad  ethical  sense;  but  merely  to 
denote  those  duties  which  would  be  enforced 
at  law,  through  the  medium  of  an  implied 
promise, if  it  were  not  for  some  positive  rule, 
-which,  with  a  view  to  general  benefit,  ex- 
empts the  party,  in  the  particular  instance, 
from  legal  liability. 

"  A  promise  to  pay  a  debt  barred  by  the 
statute  of  limitations,  or  discharged  under  a 
bankrupt  law,  falls  into  this  class  of  cases. 
So  of  an  adult's  promise  to  pay  a  debt  con- 
tracted during  his  infancy,  and  of  a  bor- 
rower's promise  to  pay  principal  and  law- 
ful interest  of  a  sum  loaned  to  him  on  a 
usurious  contract ;  and  of  a  widow  to  pay 
a  debt,  or  fulfil  other  contracts  made 
during  coverture.  So  of  a  promise  by 
the  drawer  of  a  bill  ^r  exchange,  or  the 
indorser  of  a  bill  or  note,  to  pay  it,  though 
he  lias  not  received  seasonable  notice  of  the 
default  of  other  parties.  So  of  a  promise 
b"  a  lessor  to  pay  for  repairs  made  by  a 
lessee,  according  to  agreement,  but  not  in- 


serted in  the  lease ;  and  a  promise  to  re- 
fund money  received  in  part  payment  of  a 
debt,  the  evidence  being  lost,  and  the  whole 
original  debt  having,  in  consequence  of  the 
loss,  been  recovered  by  a  suit  at  law. 

"  In  the  foregoing  cases,  there  was  a  good 
and  sufficient  original  consideration  for  a 
promise,  —  a  contract  on  which  an  action 
might  have  been  supported,  if  there  had  not 
been  a  rule  of  law,  founded  on  policy  (but 
wholly  unconnected  with  the  doctrine  of 
consideration),  which  entitled  the  promisor 
to  exemption  from  legal  liability.  In  most, 
if  not  all  these  cases,  the  rule  which  en- 
titled the  party  to  exemption  was  estab- 
lished for  his  benefit.  Such  benefit  or  ex- 
emption he  may  ^vaive ;  and  he  does  waive 
it,  by  an  express  promise  to  pay.  The  con- 
sideration of  such  promise  is  the  original 
transaction,  which  was  beneficial  to  him,  or 
detrimental  to  the  other  party. 

"  These  cases  give  no  sanction  to  the 
notion,  that  an  express  promise  is  of  any 
binding  validity,  where  there  was  nothing 
in  the  original  engagement  which  the  law 
regards  as  a  legal  consideration."  See 
American  Jurist,  Vol.  21,  p.  276-278. 
[*  In  Goulding  v.  Davidson,  26  N.  Y.  Ct. 
App.  609,  BaUom,  J.  says :  "  There  are 
cases  where  a  moral  ol)ligation,  that  is 
founded  upon  an  antecedent  valuable  con- 
sideration, is  sufficient  to  sustain  a  prom- 
ise, though  the  obligation  on  which  it  is 
founded  never  could  have  been  enforced  at 
law."  See  the  opinions  in  this  case,  and 
note  to  the  case  in  Amer.  Law  Reg.  N.  S. 
Vol.  3,  pp.  44 ;  and  Flight  v.  Reed,  9  Jur. 
N.  S.  1016,  1018.] 

■-  1  Saund.  264,  note  (1),  by  Williams; 
Yelv.  41,  note  (1),  by  Metcalf.  This  prin- 
ciple will  reconcile  some  cases,  which  seem 
to  conflict  with  the  general  rule  previously 
stated  in  the  text.  Thus,  in  Watson  v. 
Turner,  Bull.  I^.  P.  129,  147,  the  over 
seers,  who  made  the  express  promise,  were 


88  LAW   OF  EVIDENCE.  [PART  : 

was  put  at  nurse  by  the  mother's  friends,  after  which  tlie  fatli 
promised  to  pay  the  expenses,  it  was  held  by  Lord  Mansfield,  th; 
as  he  was  under  an  obligation  to  provide  for  the  child,  his  ba 
approbation  should  be  construed  into  a  promise,  and  bind  hir 
So,  where  two  persons  were  bail  for  a  debtor,  in  several  actioi 
and  one  of  them,  to  prevent  being  fixed  for  the  debt,  pursued  t 
debtor  into  another  State,  into  which  he  had  gone,  and  broug 
him  back,  thereby  enabling  the  other  also  to  surrender  him,  af( 
which  the  latter  party  promised  the  former  to  pay  his  proporti 
of  the  expense  of  bringing  the  debtor  back,  this  promise  was  he 
binding  ;  for  the  parties  had  a  joint  interest  in  the  act  done,  a: 
were  alike  benefited  by  it.^ 

§  108.  It  is  not  necessary  for  the  plaintiff  to  prove  an  expn 
assent  of  the  defendant,  in  order  to  enable  the  jury  to  find  a  pi 
vious  request ;  they  may  infer  it  from  his  knowledge  of  the  plai 
tiff's  act,  and  his  silent  acquiescence.^  Thus,  where  the  fatb 
knew  where  and  by  whom  his  minor  daughter  was  boarded  a; 
clothed,  but  expressed  no  dissent,  and  did  not  take  her  away ;  tl 
was  held  sufficient  evidence,  on  the  part  of  the  plaintiff,  to  char 
him  for  the  expenses,  unless  he  could  show  that  they  were  incurr 
against  his  consent.'*  So,  also,  as  is  familiarly  said,  if  one  see  a 
other  at  work  in  his  field,  and  do  not  forbid  him,  it  is  evidence 
assent,  and  he  wilj  be  holden  to  pay  the  value  of  his  labor.  A] 
sometimes  the  jury  may  infer  a  previous  request^  even  contrary 
the  fact,  on  the  ground  of  legal  obligation  alone  ;  as,  in  an  acti- 

legally  bound  to  relieve  the   pauper,  for         ^  Qreeves   v.  McAllister,  2  Binn.  5 

whose  benefit  the  plaintiff  had  furnished  See  also  Seago  v.  Ueane,  4  Bing.  45< 
supplies.     See  1    Selwyn,  N.  P.  50,  note         ^  See  22  Amer.  Jurist,  p.  2-11,  wh 

(11).      So   in   Ld.    Suffield    v.   Bruce,   2  the  doctrine  of  the  obligation  of  promi; 

Stark.  R.  175,  the  money  had  really  been  founded  upon  considerations  executed  ii 

paid  to  the  defendant's  house  by  mistake,  past,  is  very  clearly  and  ably  expound 

and  the  defendant  had  received  the  benefit  See  also  Yelv.  41,  note  (1),  by   ]\IctC£ 

of  the   payment,  and   was   legally   liable  Doty  v.  Wilson,  14  Johns.  378,  382,  ■ 

with  the  others  to  refund  it,  at  the  time  of  Thompson,    C.  J.      [The    law    will    i 

the  promise.     And,  for  aught  that  appears  raise  an  implied  contract,  conferring  ; 

in  the  report,  the  promise  of  indemnity  thority  to  do  an  act,  where  there  exis 

may  have  been  made  at  the  time  of  the  no  legal  right  to  make  an  express  C( 

payment,  and  afterwards  repeated  in  the  tract    authorizing    such    an   act.      Sin 

letter  of    the   defendant.      In   Atkins    v.  son    v.    Bowden,    33    Maine,    549.      ^ 

Banwcll,  2  East,  505,  which  was  an  action  also   Lewis    v.    Trickey,   20    Barb.   38 

between  two  parishes,  for  relief  afforded  to  [*  It  is  sufficient  proof  of  the  cmploynK 

a  pauper  settled  in  the  defendant  parish,  of  the  plaintiff  as  engineer  of  a  corpo 

there  was  neither  legal  nor  moral  obliga-  tion,  to  show  that  he  was  recognized  a 

tion,  nor  express  promise,  nor  subsequent  consulted  by  the  officers  of  the  compa 

assent,  on  the  part  of  the  defendants.    See  as  its  agent,  and  that  his  plans,  &c.  w 

also  Wing  o.  Rlill,  1  B.  &  A.  104.  accepted  and  acted  upon.     Moline  Wa 

1  Scott  V.  Nelson,  cited   I  Esp.  N.  P.  Power,  &e.  Co.  v.  Nichols,  26  111.  90.) 
116.  *  Nichole  v.  Allen,  3  C.  &  P.  36. 


PART  IV.]  ASSUMPSIT.  89 

against  a  husband  for  the  funeral  expenses  of  his  wife,  he  having 
been  beyond  seas  at  the  time  of  her  burial  ;  or  against  executors, 
for  the  funeral  expenses  of  the  testator,  for  which  they  had  neg- 
lected to  give  orders.^  The  law,  however,  does  not  ordinarily 
imply  a  promise,  against  tlie  express  declaration  of  the  party .^ 
Thus,  a  promise  will  not  be  implied,  on  the  part  of  a  judgment 
debtor,  to  pay  for  the  use  and  occupation  of  land  taken  from  him 
by  legal  process,  where  he  denies  the  regularity  of  the  proceedings.^ 
But  where  there  is  a  legal  duty,  paramount  to  the  will  of  the  party 
refusing  to  perform  it,  there,  as  we  have  before  intimated,  he  is 
bourid,  notwithstanding  any  negative  protestation.  Thus,  if  a 
husband  wrongfully  turns  his  wife  out  of  doors,  or  a  father  wrong- 
fully discards  his  child,  this  is  evidence  sufficient  to  support  a 
count  agauist  him  in  assumpsit,  for  their  necessary  support,  fur- 
nished by  any  stranger.*  And  if  one  commit  a  tort  on  the  goods 
of  another,  by  which  he  gains  a  pecuniary  benefit,  as  if  he  wrong- 
fully takes  the  goods  and  sells  them,  or  otherwise  applies  them  to 
his  own  use,  the  owner  may  waive  the  tort,  and  charge  him  in 
assumpsit  on  the  common  counts,  as  for  goods  sold  or  money  re- 
ceived, which  he  will  not  be  permitted  to  gainsay.® 

1  Jenkins  v.  Tucker,  1  H.  Bl.  90 ;  Tug-  Greenl.  323.  The  propriety  of  its  appli- 
well  V.  Hey  man,  3  Campb.  298;  10  Pick,  cation  against  the  administrator  of  the 
156.  See  also  Alna  i>.  Plummer,  4  Greenl.  wrongdoer  was  first  est;iblislicd  in  Ilamb- 
258;  Hanover  v.  Turner,  14  Mass.  227.  ley  v.  Trott,  Cowp.  372;  and  has  since 
[*  "  Generally,  it  is  sufficient  if  the  money  been  admitted,  without  hesitation.  Cra- 
is  paid  for  a  reasonable  cause,  and  not  vath  v.  Plympton,  13  Mass.  454.  It  has, 
officiously."  Ellsworth,  J.  Bailey  v.  Bus-  in  several  cases,  been  said  to  apply  only  to 
sing,  28  Conn.  462.]  the  case  of  money  actually  received  on  sale 

2  [Whiting  V.  Sullivan,  7  Mass.  107.]  of  the  property  wrongfully  converted.  But 
8  Wyman  v.  Hook,  2  Greenl.  337.  in  others,  it  has  been  further  applied,  so  as 
*  Robinson   v.   Gosnold,   6   Mod.    171 ;     to  entitle  the  plaintiff  to  recover  for  the 

Valkinburg  v.  Watson,  13  Johns.  488  ;  20  beneficial  use  of  the  tiling  taken  ;  Chauncey 
Am.  Jur.  p.  9;  22  Am.  Jur.  p.  2-11  ;  v.  Yeaton,  1  N.  Hamp.  R.  451  ;  5  Greenl. 
[Central  Bridge  Corp.  v.  Abbott,  4  Cush.  323 ;  and  for  the  services  of  his  apprentice, 
474.  And  evidence  that  the  husband  had  seduced  by  the  defendant ;  Lightly  v.  Clous- 
ordered  a  son  of  the  wife  to  leave  his  ton,  1  Taunt.  112;  Foster  y.  Stewart,  3  M. 
house  accompanied  with  harsh  language,  is  &  S.  191  ;  and  to  the  case  where  the  de- 
admissible  to  prove  ill-treatment  of  the  wife  fendant  had  received,  not  money,  but  a 
herself  Mayhew  v.  Thaver,  8  Gray,  172. J  promisson/  note,  for  the  price  of  the  goods 
'   I*  See  Ladd  v.  Rogers,  11  Allen,  209,  sold.     Miller  v.  Miller,  7  Pick.  133.     And 


5    [^ 

12.[ 


212.  J  [But  if  he  resorts  to  one  of  the  rcme-  in  other  cases,  the  owner  has  been  permit- 
dies,  and  fails  to  recover  at  all  on  the  raer-  ted  to  recover  in  this  form  of  action,  where 
its  of  the  case,  or  recovers  inadequate  the  goods  had  not  been  sold  by  the  defend- 
damages,  he  cannot  afterwards  resort  to  ant,  but  had  been  actualltj  a]>plied  and  con- 
anotlier  action,  though  of  a  different  spe-  verted  by  him  to  his  own  beneficial  use. 
eies,  to  recover  damages  for  the  same  in-  Hitchin  v.  Campbell,  2  W.  Bl.  827  ;  2  Pick, 
jury.  Burnett  v.  Smith,  4  Gray,  50.]  283,  note ;  Johnson  y.  Spiller,  1  Doug.  167, 
The  proposition  in  the  text  is  stated,  in  note;  Smith  ?;.  Hodson,  4  Tr.  211  ;  Hilly, 
general  terms,  by  Jack:;on,  J.,  in  Cum-  Davis,  3  N.  Hamp.  R.  384.  In  Jones  v. 
mings  V.  Noyes,  10  Mass.  436;  and  by  Hoar,  5  Pick.  285,  where  a^s««i/'s/<  was  held 
Mellea,  C.  J.,  in  Webster  v.  Drinkwater,  5  not  to  lie  for  the  value  of  timber-trees  cut 


90 


LAW   OF   EVIDENCE. 


[part  IV 


§  109.  In  regard  to  the  privitij  necessary  to  be  established  be- 
tween the  parties,  it  is  in  general  true,  that  an  entire  stranger  to 
the  consideration,  namely,  one  who  has  taken  no  trouble  or  charge 
upon  himself,  and  has  conferred  no  benefit  upon  the  promisor, 
cannot  maintain  the  action  in  his  own  name.  But  it  has  been 
said,  and  after  some  conflict  of  opinion  it  seems  now  to  be  settled, 
that  in  cases  of  simple  contract  if  one  person  makes  a  promise  to 
another  for  the  benefit  of  a  third,  the  latter  may  maintain  an 
action  upon  it  though  the  consideration  did  not  move  from  him.^ 


down  upon  the  plaintiffs  land,  and  carried 
away,  it  does  not  appear  that  the  defendant 
had  cither  sold  the  trees,  or  in  any  manner 
applied  them  to  his  own  benefit.  In  Ap- 
pleton  V.  Bancroft,  10  Met.  231,  the  officer 
was  held  liable,  in  assnmpait  for  money  had 
and  received,  where  he  had  sold  the  goods, 
but  hud  received  nothinrj  in  pni/ineni,  it  being 
his  duty  to  sell  for  ready  money.  [Boston 
and  Worcester  K.  R.  Corp.  v.  Dana,  1 
Gray,  83.  And  where  money  or  goods 
have  been  feloniously  taken,  the  action  of 
money  had  and  received  will  lie  against  the 
wrongdoer,  before  criminal  proceedings 
have  been  instituted  against  hira.  Boston 
and  Worcester  R.  R.  Corp.  v.  Dana,  1 
Gray,  83.  See  aliter  Belknap  v.  Millikcn, 
23  Maine,  381.]  [*  An  infont  is  liable  in 
assumpsit  for  money  had  and  received  for 
money  tortiouslv  taken  by  him.  Elwell  v. 
Martin,  32  Vt  217.] 

^  1  Com.  Dig.  205,  Action  upon  the  Case 
upon  Assumpsit,  E. ;  1  Vin.  Abr.  333,  pi. 
5  ;  Id.  334,  33.5,  pi.  8  ;  Dutton  v.  Poole,  1 
Vent.  318,  332;  2  Lev.  210,  S.  C. ;  T. 
Raym.  302,  S.  C,  cited  and  approved  by 
Lord  Man.sfield,  Cowp.  443;  3  B.  &  P. 
149,  note  (a) ;  Marchington  v.  Vernon,  I 

B.  &  P.  101,  note  (c) ;  Rippon  v.  Norton, 
Yelv.  1  ;  Whorewood  v.  Sliaw,  Yelv.  25, 
and  note  (1),  by  Metcalf;  Carnegie  v. 
Waugh,  2  D.  &  R.  277  ;  Garrett  v.  Hand- 
ley,  4  B.  &  C.  664 ;  Hall  v.  Marston,  1 7 
Mass.  575,  579  ;  Id.  404,  per  Parker,  C.  J. ; 
Cabot  V.  Haskins,  3  Pick.  83,  92.  See  also 
8  Joims.  58;  13  Johns.  497;  22  Amer. 
Jur.  p.  16-19;  11  Mass.  152,  note  (a),  by 
Rand;  Bull.  N.  P.  133;  Chitty  on  Contr. 
p.  45-48.  ["The  maxim,  that,  'on  a 
promise  not  under  seal,  made  by  A  to  B 
for  a  good  consideration  to  pay  B's  debt  to 

C,  C  may  sue  A,'  requires  great  modifica- 
tion, bccau.se  it  expresses  an  exception  to 
the  general  rule,  rather  than  the  rule  itself. 
By  the  recent  decisions  of  tlie  English 
courts,  its  ojjcration  is  restricted  within 
narrower  limits  than  formerly ;  and  the 
general  rule  is  now  more  strictly  enforced. 
That  general  rule  is,  and  always  has  been, 


that  a  plaintiff  in  an  action  on  a  simple 
contract  must  be  the  person  from  whom 
the  consideration  of  the  contract  actually 
moved,  and  that  a  stranger  to  the  consid- 
eration cannot  sue  on  the  contract.  The 
rule  is  sometimes  thus  expressed :  There 
must  be  a  privity  of  contract  between  the 
plaintift'and  the  defendant,  in  order  to  ren- 
der the  defendant  liable  to  an  action,  by  the 
plaintifi^,  on  the  contract.  Crow  v.  Rogers, 
1  Stra.  592  ;  Ross  v.  Milne,  12  Leigh,  204  ; 
Morrison  v.  Beckey,  6  Watts,  349  ;  1  Selw. 
N.  P.  (1 1th  ed.)  49.  The  exceptions  to  this 
rule  are  included  in  the  above  maxim,  and 
some  of  them  may  be  included  in  three  dis- 
tinct classes. 

"  1.  Indebitatus  assumpsit  for  monev  had 
and  received  can' be  maintained  in  various 
instances,  where  there  is  no  actual  privity 
of  contract  between  the  plaintiff  and  de- 
fen  lant,  and  where  the  consideration  does 
not  move  from  the  plaintifi'.  In  some  ac- 
tions of  this  kind,  a  recovery  has  been  had, 
where  the  promise  was  to  a  third  person 
for  the  benefit  of  the  plaintiff;  such  action 
being  an  equitable  one,  that  can  be  sup- 
ported by  showing  that  the  defendant  has 
in  his  hands  money,  which,  in  equity  and 
good  conscience,  belongs  to  the  plaintifi', 
without  showing  a  direct  consideration 
moving  from  him,  or  a  privity  of  contract 
between  him  and  the  defendant. 

"i\Iost  of  the  cases  in  this  first  class  are 
those  in  which  A  has  put  money  or  prop- 
erty in  B's  hands  as  a  fund  from  which 
A's  creditors  are  to  be  paid,  and  B  has 
promised,  either  expressly  or  by  implica- 
tion, from  his  acceptance  of  the  money  or 
property,  without  objection  to  the  terms  on 
which  it  was  delivered  to  him,  to  pay  such 
creditors.  In  such  cases,  the  creditors 
liave  maintained  actions  against  the  holder 
of  the  fund.  Dishorn  ?;.  Denaby,  1  D'Anv. 
Ab.  64;  Starkey  v.  Mill,  Style,  296;  Ell- 
wood  V.  Monk,  5"  Wend.  235 ;  Delaware  and 
Hudson  Canal  Co.  v.  Westchester  County 
Bank,  4  Denio,  97;  Fleming  v.  Alter,  7 
S.  &  R.  295;  Beers  v.  Robinson,  9  Barr. 
229.     The  cases  in  Massachusetts,  wuicb 


PART  IV.] 


ASSUMPSIT. 


91 


It   seems,  also,  that   the   action    may   be   maintained  by  either 
party  .1 

§  110.  Where  there  are  several  plaintiffs,  it  must  be  shown  that 
the  contract  was  made  with  them  all ;  for  if  all  the  promisees  do 
Qot  join,  it  is  a  ground  of  nonsuit.  So,  if  too  many  should  join.^ 
A.nd  where  the  plaintiff  sues  in  a  particular  capacity,  as  assignee 
Df  a  bankrupt,^  or  surviving  partner,^  he  must,  under  the  general 
issue,  prove  his  title  to  sue  in  that  capacity.  But  the  plaintiff 
need  not,  under  the  general  issue,  be  prepared  to  prove  that  the 


;learly  fall  into  this  class,  are  Arnold  v. 
".yman,  17  Mass.  400,  recognized  in  Fitch 
1.  Chandler,  4  Cash.  2.55  ;  Hall  v.  Marston, 
,7  JMass.  575;  and  Fclch  v.  Taylor,  13 
i:*ick.  133.  On  close  examination,  the  case 
)f  Carnegie  and  another  v.  Morrison  and 
mother,  '2  Met.  381,  will  be  found  tc  belong 
o  the  same  class.  The  chief  justice  there 
aid  :  '  Bradford  was  indebted  to  the  plain- 
iffs,  and  was  desirous  of  paying  them.  He 
lad  funds,  either  in  cash  or  credit,  with  the 
lefendauts,  and  entered  into  a  contract 
v'nh  them  to  pay  a  sum  of  money  for  him 

0  the  plaintiff's.  And,  upon  the  faith  of 
hat  undertaking,  he  forbore  to  aiiopt  other 
aeasures  to  pay  the  plaintiffs'  debt.' 

"  By  the  recent  English  decisions,  how- 
ver,  one  to  whom  money  is  transmitted,  to 
e  paid  a  third  person,  is  not  liable  to  an 
ction  by  that  person,  unless  he  has  ex- 
ressly  agreed  to  pay  him.  And  such  was 
lie  opinion  of  Spencer,  J.,  in  Weston  v, 
Jarker,  12  Johns.  282.  See  the  I-lnglish 
iises  collected  in  1  Archb.  N.  P.  (Amer. 
d.  1848),  121-125. 

"  2.  Cases  where  promises  have  been 
lade  to  a  father  or  uncle,  for  the  benefit 
f  a  child  or  nephew,  form  a  second  class, 

1  which  the  person  for  whose  benefit  the 
roniise  was  made  has  maintained  an  ac- 
ion  tor  the  breach  of  it.  'J'he  nearness  of 
he  relation  between  the  promisee  and  him 
jr  whose  benefit  the  promise  was  made 
as  been  sometimes  assigned  as  a  reason 
ir  these  derisions.  And  though  different 
pinion rJ,  both  as  to  the  correctness  of  the 
ecisions,  and  as  to  this  reason  for  them, 
ave  often  been  expressed  by  English 
udges,  yet  the  decisions  themselves  have 
ever  been  overruled,  hut  are  still  regarded 
s  settled  law.  J^utton  v.  Poole,  1  Vent. 
1 8,  is  a  familiarly  known  case  of  this  kind, 
a  whirh  the  defendant  promised  a  father, 
rho  was  about  to  fell  timber  for  the  pur- 
ose  of  raising  a  portion  for  his  daughter, 
hat,  if  he  would  forbear  to  fell  it,  the  de- 
jndant  would  pay  the  daughter  £1,000. 
rhe  daughter  maintained  an  action  on  this 
iromise.  Several  like  decisions  had  been 
ireviously  made.     Kookwood's  case,  Cro. 


Ehz.  164 ;  Oldham  v.  Bateman,  1  Roll.  Ah. 
31 ;  Provender  v.  Wood,  Hetl.  30 ;  Thom- 
as's case.  Style,  461  ;  Bell  v.  Chaplain, 
Hardr.  321.  These  cases  support  the  de- 
cision of  this  court  in  Felton  v.  Dickinson, 
10  Mass.  287. 

"  3.  The  last  case  in  this  Commonwealth, 
which  was  cited  in  support  of  the  present 
action,  is  Brewer  v.  Dyer,  7  Cush.  337.  In 
that  case,  the  defendant  gave  to  the  lessee 
of  a  shop  a  written  promise  to  take  the 
lease,  and  pay  to  the  lessor  the  rent,  with 
the  taxes,  according  to  the  terms  of  the 
lease.  The  defendant  entered  into  pos- 
session of  the  shop,  with  the  knowledge  of 
the  lessor,  and  paid  the  rent  to  him  for  a 
year,  and  then  left  the  shop.  And  it  was 
decided,  that  he  was  liable  to  the  lessor  for 
the  subsequently  accruing  rent,  and  for  the 
taxes,  on  his  promise  to  the  lessee."  Mel- 
len  V.  Whipple,  1  Gray,  317. 

So,  where  land  was  conveyed  by  deed 
poll,  subject  to  a  mortgage  previously 
made  by  the  grantor,  and  the  deed  recites 
that  the  sum  secured  by  the  mortgage  is 
part  of  the  consideration  of  the  deed,  and 
that  the  deed  is  on  the  condition  that  the 
grantee  therein  shall  assume  and  pay  the 
mortgage-debt  and  the  interest  thereon,  as 
they  severally  become  due  and  payable ; 
and  the  grantee  enters  upon  and  holds  the 
estate,  and  does  not  pay  the  interest  when 
it  falls  due;  the  grantor,  after  paying  the 
interest  on  the  demand  of  the  mortgagee, 
may  maintain  assumpsit  against  the  gran- 
tee to  recover  the  amount  so  paid.  Pike  v. 
Brown,  7  Cush.  133.  See  also  Goodwin  v. 
Gilbert,  9  Mass.  510;  Felch  v.  Taylor,  13 
Pick-  133.  See  also  lung  v.  Hutchins,  8 
Foster  (N.  H.),  561. 

1  Bell  V.  Chaplain,  Hardr.  321  ;  1  Chitty 
on  Plead,  p.  5  ;  22  Am.  Jurist,  p.  19  ;  Ham- 
mond on  Parties,  pp.  8,  9;  Skinner  v. 
Stocks,  4  B.  &  Aid.  437.  See  also  Story 
on  Agency,  §§  393,  394. 

2  Chitty  on  PI.  6-8,  15;  Brand  v. 
Boulcott,  2  B.  &  P.  235. 

^  1   Saund.  on  Plead,  and  Evid.  250- 
289. 
*  Wilson  V.  Hodges,  2  East,  312. 


< 


92  LAW  OF  EVIDENCE.  [PART  IV. 

contract  was  made  with  all  the  defendants  ;  as  the  non-joinder  of 
defendants  can  ordinarily  be  taken  advantage  of  only  by  a  plea  in 
abatement.^ 

§  111.  It  must  also  appear  on  the  part  of  the  plaintiff,  that  the 
contract  was  not  unlawful.  For  if  it  appears  to  have  for  its  object 
anything  forbidden  by  the  laws  of  God,  or  contrary  to  good  morals  ; 
or,  if  it  appears  to  be  a  contract  to  do  or  omit,  or  to  be  in  consid- 
eration of  the  doing  or  omission  of  any  act,  where  such  doing  or 
omission  is  punishable  by  criminal  process  ;  or,  if  it  appears  to  be 
contrary  to  sound  public  policy  ;  or,  if  it  appears  to  be  in  contra- 
vention of  the  provisions  of  any  statute  ;  in  any  of  these  cases  the 
plaintiff  cannot  recover,  but  upon  his  own  showing  may  be  non 
suited.  For  the  law  never  lends  its  aid  to  carry  such  agreements 
into  effect,  but  leaves  the  parties  as  it  finds  them,  in  pari  delicto? 
But  though  the  principal  contract  were  illegal,  yet  if  money  has 
been  advanced  under  it  by  one  of  the  parties,  and  the  contract  still 
remains  wholly  executory,  and  not  carried  into  effect,  he  may  re- 
cover the  money  back  upon  the  common  money  counts  ;  for  the 
policy  of  the  law  in  both  cases  is  to  prevent  the  execution  of  illegal 
contracts  ;  in  the  one  case  by  refusing  to  enforce  them,  and  in  the 
other  by  encouraging  the  parties  to  repent  and  recede  from  the  in- 
iquitous enterprise.^  And  the  same  rule  is  applied  to  cases  whore, 
though  the  contract  is  executed,  the  parties  are  not  in  pari  delicto  ; 
the  money  having  been  obtained  from  the  plaintiff  by  some  undue 
advantage  taken  of  him,  or  other  w  "ong  practised  by  the  defend- 
ant.'^ 

§  112.  In  proof  of  the  count  for  money  lent,  it  is  not  sufficient 
merely  to  show  that  the  plaintiff  delivered  money  or  a  bank-check 
to  the  defendant ;  for  this,  primd  facie,  is  only  evidence  of  the  pay- 
ment by  tJie  plaintiff  of  his  own  debt,  antecedently  due  to  the  de- 

1  1  Chitty  on  Plead.  31-33,  52.  v.  Savage,  15  "Wend.  412  ;  White  v.  Frank 

2  See  Chitty  on  Contracts,  p.  513-561 ;     lin  Bunk,  22  Pick.  181,  189. 

22  Amer.  Jurist,  p.  249-277  ;  23  Am.  Ju-  *  I'oid. ;  Worcester  v.  Eaton,  11  Mass. 
rist,  p.  I -23;  StoryonContracts,  ch.  v.,  vi.;  376;  Walker  v.  Hani,  2  N.  Hamp.  241; 
Greenwood  w.  Curtis,  6  Mass.  381;  Pear-  Amesbury  Man.  Co.  y.  Amesbury,  1 7  Mass. 
son  V.  Lord,  Id.  84;  Worcester  v.  Eaton,  461;  Preston  v.  Boston,  12  Pick.  7;  At- 
11  Mass.  368;  Merwin  v.  Huntiniiton,  2  water  w.  Woodbridge,  6  Conn.  223 ;  Chase 
Conn.  209;  Babcock  «;.  Thompson,  3  Pick.  v.  Dwinel,  7  Greenl.  134;  Kichardson  v. 
446;  Burt  w.  Place,  6  Cow.  431  ;  Best  v.  Duncan,  3  N.  Hamp.  508;  Clinton  v. 
Strong,  2  Wend.  319;  Gregg  y.  Wyman,  4  Strong,  9  Johns.  370;  Mathers  v.  Pear- 
Law.  IJep.  361,  N.  S.,  where  the  cases  are  son,  13  S.  &  R.  258.  [If  the  plaintiffs 
colkcted.  Niver  ;;.  Best,  Id.  183.  have  been  guilty  of  laches,  in  asserting 
2  Chitty  on  Contracts,  pp.  498,499;  their  rights,  they  cannot  maintain  an  action 
Tappeuden  v.  Randall,  2  B.  &  P.  467 ;  for  money  had  and  received.  Mercantile 
Aubert  v.  W^alsh,  3  Taunt.  277;  Perkins  Marine  Ins.  Co.  v.  Corvoran,  1  Gray  76. 


PART  IV.]  ASSUMPSIT.  93 

fendant.^  He  must  prove  that  the  transaction  was  essentially  a 
loan  of  money .2  If  it  was  a  loan  of  stock,  this  evidence,  it  seems, 
would  not  support  the  count.^  But  money  deposited  with  a  banker 
by  a  customer  in  the  usual  way  has  been  held  to  be  money  lent.* 
A  promissory  note  is  sufficient  evidence  of  a  loan  between  the 
original  parties  ;  even  though  it  be  payable  on  condition,  if  the 
condition  has  been  performed  ;  or  be  payable  in  specific  articles, 
if  the  special  promise  is  broken.^  Indeed,  a  bill  of  exchange  or 
promissory  note  seems  now  to  be  considered  as  primd  facie  proof 
of  the  money  counts,  in  any  action  between  the  immediate  parties, 
whether  they  were  original  parties  or  subsequent,  as  indorsees  or 
bearers,  claiming  against  the  original  drawers  or  makers.^  So,  if 
the  plaintiff  has  become  the  assignee  of  a  debt,  with  the  assent  of 
the  debtor,  this  is  equivalent  to  a  loan  of  the  money.''  So,  if  A 
owes  a  sum  definite  and  certain  to  B,  and  B  owes  the  same  amount 
to  C,  and  the  parties  agree  that  A  shall  be  debtor  to  C  in  B's  stead, 
this  is  equivalent  to  a  loan  by  C  to  A.^  This  is  an  exception  to 
the  general  rule  of  law,  that  a  debt  cannot  be  assigned  ;  and  is 
permitted  only  whore  the  sum  is  ascertained  and  defined  beyond 
dispute.^ 

§  113.   To  sustain  the  count  for  money  paid,  the  plaintiff  must 
prove  the  actual  payment,  and  the  defendant's  prior  request  so  to 

^  "Welsh  V.  Seaborn,  1  Stark.  R.  474 ;  defendant  may  make  any  defence  to  the 

Gary   v.    Gerish,   4   Esp.   9  ;    Gushing   v.  note,  when  ofiered  under  the  money  counts, 

Gore,  15  Mass.  74.     If  the  money  was  de-  wliich  would  be  o])cn  to  Iiiin  under  any 

livered  by  a  parent  to  a  child,  it  will  be  pre-  other  count.    Austin  v.  Rodman,  1  Hawks, 

fiumed  an  advancement,  or  gift.     Per  Bay-  195.      But  he  can  have  no  other  defence 

ley,  J.,  in  Hick  v.  Keats,  4  B.  &  C.  71.  than  would  be  open  to  him  under  a  special 

f*2  Painter  V.Abel,  9  Jur.  (N.  S.)  549.]  count  upon  the  note.     Ilart  v.  Avers,  9 

*  Nij:htingal  r.  Devisme,  5  Burr.  2589 ;  Ohio  R.  5.  It  has  been  held,  that  an 
Jones  V.  Brinley,  1  East,  1.  I  O  U,  though  evidence  of  account  stated, 

*  Pott  V.  Clegg,  11  Jur.  289;  Pollock,  is  not  evidence  of  money  lent.  Fessen- 
C.  B.,  dubilante.  But  see  11  Jur.  157,  mayer  v.  Adcock,  16  M.  &  W.  449.  [*A 
158.  coupon,  like  a  note,  is  admissible  in  evi- 

*  Payson  v.  "Whitmarsh,  15  Pick.  212;  dcnce  under  the  common  counts.  Johnsou 
Smith  v.  Smith,  2  Johns.  235  ;  Crandall  v.  v.  Stark,  24  111.  75.] 

Bradley,  7  Wend.  311.  M  Steph.  N.  P.  316;  2  Stark.  Ev.  61. 

8  Bayleyon  Bills,  p.  390-393,  and  notes,  See  Mowry  v.  Todd,  12  Mass.  281.     If  the 

by  Phillips  and  Sewall ;  Young  v.  Adams,  contract  assigned  is  a  specialty,  the  rule  is 

6  Mass.  189;  Pierce  v.  Crafts,  12  Johns,  the  same.     Compton  v.  Jones,  4  Cow.  13. 

90;  Denn  v.  Flack,  3  G.  &  J.  369;  Wilde  But  it  has  been  questioned,  whether  «ss«/np- 

V.  Fisher,  4  Pick.  421  ;  Ramsdell  r.  Soule,  sit  lies,  in  such  case,  without  an  express 

12  Pick.  126  ;  Olcott  v.  Rathbone,  5  Wend,  promise  to  the  assignee.    Dubois  v.  Doubie- 

490;  Ellsworth  v   Brewer,  11  Pick.  316;  day,  9  Wend.  317.     In  this  case,  there  was 

Edgerton  r.  Brackett,  UN.  Hamp.  218;  not  sufficient  evidence  to  raise  even  an  im- 

Fairbanks  v.  Stanley,  6  Shepl.  296  ;  Good-  plied  promise. 

win  V.  Morse,  9  Mote.  278  ;  Moore  v.  Moore,  *  Wade  v.  Wilson,  1  East,  795  ;  Wilson 

Id.  417.     But  not  if  the  note  is  not  nego-  v.  Coupland,  5  B.  &  Aid.  228  ;   [Hamilton 

tiable,  and  expresses   no  value   received,  v.  Starkweather,  28  Conn.  130.] 

Saxton  V.  Johnson.  10  Johns.  418.     The  »  Fairlee  v.  Denton.  8  B.  &  C.  395. 


94  LAW   OF   EVIDENCE.  [PART  IV. 

do,  or  his  subsequent  assent  and  approval  of  the  act,  to  be  shown 
in  the  manner  and  by  the  methods  already  stated.^  And  if  the 
money  lias  been  paid  by  the  defendant's  request,  with  an  under- 
taking express  or  implied  on  his  part  to  repay  the  amount,  it  is 
immaterial  whether  the  defendant  has  been  relieved  from  liability 
or  odierwise  profited  by  the  payment  or  not.^  Whether  the  plain- 
tiff can  recover  under  this  count,  without  proof  of  the  actual  pay- 
ment of  money,  and  by  only  showing  that  he  had  become  liable  at 
all  events  to  pay  money  for  the  defendant,  is  a  point  upon  which 
there  has  been  some  apparent  conflict  of  decisions.  It  has  been 
held  in  England,  that  where  the  plaintiff  had  given  his  own  nego- 
tiable promissory  note,  which  the  creditor  accepted  as  a  substitute 
for  the  debt  due  by  the  defendant,  he  was  entitled  to  recover  the 
amount  under  this  count,  though  the  note  still  remained  unpaid.^ 
And  it  has  also  been  held  that,  where  he  had  become  liable  for  the 
debt  by  giving  his  bond,  thoiigh  he  thereby  procured  the  defend- 
ant's discharge,  he  could  not  recover  the  amount  from  the  defend- 
ant until  he  had  actually  paid  the  money  due  by  the  bond.*  The 
latter  rule  has  been  adopted  and  followed  by  the  American  courts, 
on  the  ground  that  the  bond  is  not  negotiable,  nor  treated  as 
money  in  the  ordinary  transactions  of  business,^  but  they  also  hold 
that  the  giving  of  a  bill  of  exchange  or  negotiable  note  by  the 
plaintiff,  wliich  has  been  accepted  by  the  creditor  in  satisfaction  of 
the  defendant's  debt,  is  sufficient  to  support  the  count  for  money 
paid.^  If,  however,  the  plaintiff  has  obtained  a  discharge  of  his 
own  liability  by  the  payment  of  less  than  the  full  amount,  it  has 
been  held,  that  he  can  recover  only  the  sum  actually  paid.^  And 
in  regard  to  the  mode  of  payment,  proof  of  anything  given  and  re- 
ceived as  cash,  whether  it  be  land  or  personal  chattels,  is  sufficient 
to  support  this  count.^     If  incidental  damages,  such  as  costs  and 

1  ^Sfz/Jra,  §§  107,  108.  ^  pouglass    v.   Moody,   9    Mass.    553; 

2  Britain  v.  Lloyd,  14  M.  &  W.  762.  Cornwall  v.  Gould,  4  Pick.  444 ;  Pearson 
8  Barclay  v.  Goiich,  2  Esp.  571.  v.  Parker,  3  N.  Hamp.  3G6 ;  8  Johns.  206; 
*  Taylor  v.  Higt,nns,  3  East,  1G9  ;  Max-  Craig  i'.  Craig,  5  Rawle,  91,  98,  per  Gib- 
well  y.  Jameson,  2  B.  &  Aid.  51  ;  Power  v.  son,  C.  J.;   Lai)liam  v.  Barnes,  2  Verm. 
Butcher,  10  B.  &  C.  329,  346,  per  Parke,  J.  213 ;  McLellan  v.  Crofton,  6  Greenl.  331  - 

5  Cuniming  v.  Hacklcy,  8  Johns.  202  ;  4  333.     And  see  Dole  v.  Haydcn,  1  GreenL 

Pick.  447,  i)cr  Wilde,  J.     And  see  Gardner  152;    Ligalls    v.  Dennett,   6  Greenl.  80; 

V.  Cleveland,  9  Pick.  334.     The  entry  of  Clark    j;.  Fo.xcroft,   7    Greenl.  355 ;    Van 

judgment  on  the  bond,  and  issuing  of'exe-  Ostrand  v.  Reed,  1  Wend.  424;  Morrison 

cution,  does  not  vary  the  case.     Morrison  v.  Bcrkey,  7  S.  &  R.  238,  246;  Bcardsley 

V.  Bcrkey,  7  S.  &  R.  238.     Whether  being  v.  Root,  1 1  Johns.  464. 

t.aken  in  execution  would,  qwnre ;  and  seo  "^  Bonney  v.  Scelc}',  2  Wend.  481. 

Parker  v.  The  United  States,  1  Peters,  C.  C.  ^  Ainslec  v.  Wilson,  7  Cowen,  662,  660 , 

R.  266  Bonney  v.  Seeley,  2  Wend.  481 ;  Randal] 


PART  IV.] 


ASSUMPSIT. 


95 


the  like,  have  been  incurred  by  a  surety,  they  can  be  proved  only 
under  a  special  count ;  ^  unless  the  suit  was  defended  at  the  re- 
quest of  the  principal  debtor,  and  for  his  sole  benefit,  the  defendant 
being  but  a  nominal  party,  such,  for  example,  as  an  accommodation 
acceptor.^ 

§  114.  If  the  money  has  been  paid  to  a  third  person,  in  compli- 
ance with  a  written  order  of  the  defendant  in  that  person's  favor, 
the  possession  of  the  order  by  the  plaintiff  will  generally  be  primd 
facie  evidence  that  he  has  paid  the  money .^  Wliere  no  express 
order  or  request  has  been  given,  it  will  ordinarily  be  sufficient  for 
the  plaintiff  to  show,  that  he  has  paid  money  for  the  defendant  for 
a  reasonable  cause,  and  not  officiously.^     Thus  this  count  has  been 


V.  Rich,  11  Mass.  498,  per  Parker,  C.  J. ; 
[Floyd  V.  Day,  .3  Mass.  403  ;  Blaisdell  v. 
Gladwin,  4  Cush.  378.]  [*  It  is  quite  in- 
diflerent  how  the  surety  extinguishes  the 
debt.  If  he  do  it  in  any  mode,  it  is,  so  far 
as  the  principal  is  concerned,  equivalent  to 
the  payment  of  money  fur  his  benefit,  and 
at  his  request.  Hnlett  v.  Soullard,  26  Vt. 
298.] 

1  Seaver  v.  Seaver,  6  C.  &  P.  673  ;  Gil- 
lett  V.  Rippon,  1  M.  &  Malk.  406  ;  Knight 
V.  Hughes,  Id.  247 ;  3  C.  &  P.  466,  S.  C. ; 
Smitli  V.  Compton,  3  B.  &  Ad.  467.  [*  If 
the  debt  may  be  recovered  as  money  paid, 
so  equally  mav  the  costs.  Hulett  v.  Soul- 
lard, 26  Vt.  298.] 

2  Howes  V.  Martin,  1  Esp.  162. 

8  Blunt  V.  Starkie,  1  Taylor,  110;  2 
Hayw.  75,  S.  C. 

*  Brown  v.  Hodgson,  4  Taunt.  190,  per 
Mansfield,  C.  J.;  Skillen  v.  Merrill,  16 
Mass.  40.  "  Whenever  the  consideration 
of  a  promise  is  executory,  there  must,  ex 
necessitate  rei,  have  been  a  request  on  the 
part  of  the  person  promising.  For  if  A 
promise  to  remunerate  B,  in  consideration 
that  B  will  perform  something  specified, 
that  amounts  to  a  request  to  B  to  perform 
the  act  for  which  he  is  to  be  remunerated. 
See  King  v.  Sears,  2  C.  M.  &  R.  53.  Where 
the  consideration  is  executed,  unless  there 
have  been  an  antecedent  request,  no  action 
is  maintainable  upon  the  promise ;  for  a 
request  must  be  laid  in  the  declaration,  and 
proved,  if  put  in  issue,  at  the  trial.  Child 
V.  Morley,  8  T.  R.  610;  Stokes  v.  Lewis, 
1  T.  R.  20  ;  Naish  v.  Tatlock,  2  H.  Bl. 
319  ;  Hayes  v.  Warren,  2  Str.  933;  Rich- 
ardson V.  Hall,  1  B.  &  B.  50  ;  Durnford  v. 
Messiter,  5  M.  &  S.  446.  See  Reg.  Gen. 
Hil.  1832,  pi.  8.  For  a  mere  voluntary 
courtesy  is  not  sufficient  to  support  a  sub- 
sequent promise ;  but  where  there  was  pre- 
vious request,  the  courtesy  was  not  merely 
voluntary,  nor  is  the  promise  nudum  pactum, 


but  couples  itself  with  and  relates  back  to 
the  previous  request,  and  the  merits  of  the 
party,  which  were  procured  by  that  request, 
and  is  therefore  on  a  good  consideration. 
Such  request  may  be  either  express  or  i?n- 
plied.  If  it  had  not  been  made  in  express 
terms,  it  will  be  implied  under  the  following 
cii-cumstances  :  First,  where  the  considera- 
tion consists  in  the  plaintiff's  having  been 
compelled  to  do  that  to  which  the  defend- 
ant was  legally  compellable.  Jeffreys  v. 
Gurr,  2  B.  &  Ad.  833  ;  Pownall  v.  Ferrand, 
6  B.  &  C.  439  ;  Exah  v.  Partridge,  8  T.  R. 
308 ;  Toussaint  v.  Martinnant,  2  T.  R. 
100.  Secondly,  when  the  defendant  has 
adopted  and  enjoyed  the  benefit  of  the  con- 
sideration ;  for  in  that  case  the  maxim 
applies,  omnis  ratihahitio  retrotrahitur  et  man- 
dato  aquiparalur.  Thirdly,  where  the  plain- 
tiff voluntarily  does  that  whereunto  the  de- 
fendant was  legally  compellable,  and  the 
defendant,  aftei-wards,  in  consideration 
thereof,  expressly  promises.  Wennall  v. 
Adney,  3  B.  &  P.  250,  in  notis ;  Wing  v. 
Mill,  1  B.  &  A.  104  ;  S.  N.  P.  8  ed.  p.  57,  n. 
11  ;  Paynter  v.  Williams,  1  C.  &  M.  818. 
But  it  must  be  observed,  that  there  is  this 
distinction  between  this  and  the  two  former 
cases,  namely,  that  in  each  of  the  two  former 
cases,  the  law  will  imply  the  promise  as  well 
as  the  request,  whereas  in  this  and  the  follow- 
ing case,  the  promise  is  not  implied,  and  the 
request  is  only  then  implied  when  there  has 
been  an  express  promise.  Atkins  v.  Ban- 
well,  2  East,  505.  Fourthly,  in  certain 
cases,  where  the  plaintiff  voluntarily  Joes 
that  to  which  the  defendant  is  morally, 
though  not  legally,  compellable,  and  the 
defendant,  afterwards,  in  consideration 
thereof,  expressly  promises.  See  Lee  v. 
Muggeridge,  5  Taunt,  36  ;  Watson  v.  Tur- 
ner, B.  N.  P.  129,  147,  281  ;  Trueman  v. 
Fenton,  Cowp.  544 ;  Atkins  v.  Banwell,  2 
East,  505.  But  every  moral  obligation  is 
not,  perhaps,  sufficient  for  this  purpose.  See 


96  LAW   OF  EVIDENCE.  [PART  IV. 

sustained,  for  money  paid  to  relieve  a  neighbor's  goods  from  legal 
distraint  in  his  absence  ;  ^  to  defray  the  expenses  of  his  wife's  fu- 
neral ;  2  to  apprehend  the  defendant,  for  whom  the  plaintiff  had 
become  bail,  and  bring  him  to  court,  so  that  he  might  be  surren- 
dered ;  3  to  discharge  a  debt  of  the  defendant,  for  which  the  plain- 
tiff had  become  surety ;  ^  or  for  which  the  plaintiff's  goods,  being 
on  the  premises  of  the  defendant,  had  been  justly  distrained  by  the 
landlord  ;  ^  or  for  money  paid  to  indemnify  the  owner  for  the  loss 
of  his  goods,  which  the  plaintiff,  a  carrier,  had  ^y  mistake  deliv- 
ered to  the  defendant,  who  had  consumed  them  for  his  own  use.^ 
So,  where  a  debt  has  been  paid  by  one  of  several  debtors,  or  by  one 
of  several  sureties,  the  payment  is  sufficient  evidence  in  support  of 
this  count  against  the  others,  for  contribution.'^  So,  among  mer- 
chants, when  one  has  accepted  a  protested  bill  for  the  honor  of  one 
of  the  parties,  which  he  has  afterwards  paid.^  And,  in  general, 
where  the  plaintiff  shows  that  he,  either  by  compulsion  of  law,  or 
to  relieve  himself  from  liability,  or  to  save  himself  from  damage, 
has  paid  money  which  the  defendant  ought  to  have  paid,  this  count 
will  be  supported.^ 

§  115.   If  the  money  appears  to  have  been  paid  in  consequence 

per  Lord  Tenterden,  C.  J.,  in  Littleficld  v.  recover  an  indemnity  from  his  principal 

Slice,  2  B.  &  Adol.  811."     See  1   Smith's  Toussaint  r.    Martinnant,  2    T.   R.    100; 

Leading  Cases,  p.  70,  note.  Fisher  v.  Fellows,  5  Esp.  171.     Thus  the 

^  Per  Ld.  Loughborough,  1  H,  Bl.  93.  indorser  of  a  bill,  wlio  has  been  sued  by 

2  Jenkins  v.  Tucker,  1  H.  Bl.  90.  the  holder,  and  has  paid  part  of  the  amount, 
8  Fisher  v.  Fellows,  5  Esp.  171.  being  a  surety  for  the  accci^tor,  may  recover 
*  Exall    V.   Partridge,    8    T.    R.    310,  it  back  as  money  paid  to  his  use,  and  at 

per    Ld.    Kenyon  ;    Kemp   v.   Fhiden,    8  his  request.    Pownallt;.  Ferrand,  6  B.  &C. 

Jur.  65  ;    [Blaisdell   v.  Gladwin,  4    Cush.  439.     But  then  the  surety  must  have  been 

3'^-]  compelled,  i.  e.  he  must  have  been  under  a 

6  Exall  V.  Partridge,  8  T.  R.  308.  reasonable  obligation  and  necessity,  to  pay 

6  Brown  ?-.  Hodgson,  4  Taunt.  189,  per  what  he  seeks  to  recover  from  his  princi 

Mansfield,  C.  J.,  and  Heath,  J.      But  in  pal ;  for  if  he  improperly  defend  an  action, 

Sdls  V.   Laing,  4   Campb.  81,  Ld.  Ellen-  and  incur  costs,  there  will  be  no  implied 

borough  ruled,  that,  in  such  case,  the  plain-  duty  on  the  part  of  his  principal  to  reim- 

tiff  ought  to  declare  specially.  burse  him  those,  unless  the  action  was  de- 

T  1  Steph.  N.  P.  324-326.  fended  at  the  principal's  request.    Gillett  v. 

8  Smith  V.  Nissen,  1  T.  R.  259  ;  Vande-  Rippon,  1  M.  &  M.  406  ;  Knight  v.  Hughes, 

well  V.  Tyrell,  1  Mood,  &  Malk.  87  ;  Story  1  M.  &  M.  247.     See  Smith'  r.  Compton,  3 

on  Bills  of  Exchange,  §§  255,  256.  B.  &  Ad.  407.     But  if  he  m.ake  a  reasona- 

3  1  Stcph.  N.  P.  324,  326  ;  Lubbock  w.  ble  and  prudent  compromise,  he  will  be  jus- 
Tribe,  3  M.  &  W.  607  ;  Cowell  v.  Edwards,  tified  in  doing  so."  1  Smitii's  Leading 
2  B.  &  P.  268  ;  Alexander  v.  Vane,  1  M.  &  Cases,  p.  70.  If  there  were  several  princi- 
W.  51 1  ;  Grissell  v.  Robinson,  3  Bing.  N.  C.  pals,  and  one  surety  has  paid  the  debt,  each 
10.  "  One  of  the  cases  in  which  an  express  is  severally  liable  for  the  whole  sum.  Dnn- 
re7««/ is  unnecessary,  and  in  which  a  prom-  can  r.  Keiffer,  3  Binn.  126.  And  where 
ise  will  be  implied,  is  that  in  which  the  there  are  several  sureties,  if  one,  by  paying 
plaintiff  has  been  compelled  to  do  that  to  the  debt  too  soon,  has  deprived  the  other 
which  the  defendant  was  %«//// corajtella-  of  an  opportunity  to  relieve  himself,  he  can- 
ble.  On  this  principle  depends  the  right  not  have  contribution.  Skillin  v.  Merrill, 
©f  a  surety  who  had  been  damnified,  to  16  Mass.  40. 


PART  IV.]  ASSUMPSIT.  97 

of  the  plaintiff's  own  voluntary  breach  of  legal  duty,  or  for  a  tort 
committed  jointly  with  the  defendant,  it  cannot  be  recovered.^  The 
general  rule  is,  that  wrongdoers  shall  not  have  contribution  one 
from  another.  The  exception  is,  that  a  party  may,  with  respect  to 
innocent  acts,  give  an  indemnity  to  another  which  shall  be  effect- 
ual ;  though  the  act,  when  it  came  to  be  questioned  afterwards, 
would  not  be  sustained  in  a  court  of  law  against  third  persons  who 
complained  of  it.  If  one  person  induce  another  to  do  an  act  which 
cannot  be  supported,  but  which  he  may  do  without  any  breach  of 
good  faith  or  desire  to  break  the  law,  an  action  on  the  indemnity, 
either  express  or  implied,  may  be  supported.^  Thus,  where  the 
title  to  property  is  disputed,  an  agreement  hj  persons  interested 
to  indemnify  the  sheriff  for  serving  or  neglecting  to  serve  an  exe- 
cution upon  the  property,  if  made  in  good  faith,  and  with  intent  to 
bring  the  title  more  conveniently  to  a  legal  decision,  is  clearly 
valid .^  So,  where  a  sheriff,  having  arrested  the  debtor  on  mesne 
process,  discharged  him  on  payment  of  the  sum  sworn  to,  but  was 
afterwards  obliged  to  pay  the  original  plaintiff  his  interest,  he  was 
permitted  to  recover  the  latter  sum  from  the  debtor,  under  a  count 
for  money  paid.*  So,  where  the  sheriff  has  been  obliged  to  pay 
the  debt,  by  reason  of  the  negligent  escape  of  the  debtor,  namely, 
an  escape  by  the  pure  act  of  the  prisoner,  without  the  knowledge 
and  against  the  consent  of  the  officer,  it  seems  he  may  recover  the 
amount  as  money  paid  for  the  debtor.^     But  if  the  escape  were 

^  Capp  V.  Topham,  6  East,  392 ;  Bur-  rule  of  law,  that  wrongdoers  cannot  have 
don  I'.  Webb,  2  Esp.  527.  [Ante,  §  111.  redress  or  contribution  against  each  other, 
Wlierc  the  parties  to  a  wager  upon  the  re-  is  confined  to  tliose  cases  where  the  person 
suit  of  an  election  deposited  the  amount  claiming  redress  or  contribution  knew,  or 
bet  with  a  stakeholder,  and  after  the  elec-  must  be  presumed  to  have  known,  that  the 
tion  was  determined  against  the  plaintiff,  act  for  which  he  has  been  mulcted  in  dam- 
he  demanded  of  the  stakeholder  repayment  ages  was  unlawful.  Jacobs  v.  Pollard,  10 
of  his  money,  and  forbade  the  winner  to  Cush.  287.  Thus,  where  A  in  good  faith 
lake  it,  but  the  stakeholder  paid  to  the  took  up  B's  cattle  damage-feasant,  and 
winner  the  identical  money  which  the  plain-  C,  a  field-driver,  at  A's  request,  sold  them 
tiff  had  deposited  with  him,  the  plaintiff  at  auction,  and  received  the  money ;  but 
was  allowed  to  recover  the  same  of  the  win-  the  proceedings  being  irregular,  A  and  C 
ner,  in  an  action  of  money  had  and  received,  were,  in  fact,  joint  trespassers ;  it  was  held, 
McKee  v.  Manice,  11  Cush.  .3.57.  No  one  that  A  may  maintain  an  action  of  money 
knowingly  participating  in  a  transaction  had  and  received  against  C  for  the  pro- 
intended  to  accomplish  a  purpose  forbid-  ceeds  of  the  sale  of  the  cattle.  lb.] 
den  by  law,  can  bring  an  action  for  any  ^  Wright  v.  Ld.  Verney,  2  Doug.  240 
cause  directly  connected  with  that  illegal-  "Watson  on  Sheriffs,  p.  .3S0. 
ity.  Foster  ?;.  Thurston,  lb.  322;  White  *  Gordon  r.  Ld.  Massarene,  Peake's  Cas. 
v.'Bass,  3  lb.  448;  Duffy  v.  Gorman,  10  143. 
lb.  4.T  ;  Mills  v.  Western  "Bank,  lb.  22.]  ^^  Eyles   v.  Paikney,  Peake's  Caa.  143, 

^  Betts  V.  Gibbins,  4  Nev.  &  M.  77,  per  n.    (a).      Semble.      Better  reported   in   8 

Ld.  Denman,  C.  J. ;  2  Ad.  &  El.  .57,  8.  C. ;  East,  172  n. ;  4  Mass.  373,  per  Parsons, 

Merryweather  v.  Nixan,  8  T.  R.  186.   [The  C.  J.;  Appleby  v.  Clark,  10  Mass.  59. 

VOL.  II.  7 


98  LAW   OF  EVIDENCE.  [PART  IV 

voluntary  on  the  part  of  the  officer,  the  money  paid  could  not  b( 
recovered  of  the  debtor.^ 

§  116.  "Where  the  money,  which  is  sought  to  be  recovered  un 
der  the  count  for  money  paid,  has  been  paid  under  a  judgmen 
against  the  plaintiff,  the  record  of  the  judgment,  as  we  have  here 
tofore  shown,^  is  always  admissible  to  prove  the  fact  of  the  judg 
ment,  and  the  amount  so  paid.  But  it  is  not  admissible  in  prooi 
of  the  facts  on  which  the  judgment  was  founded,  unless  the  debtor 
or  person  for  whose  default  the  action  was  brought,  had  due  notice 
of  its  pendency,  and  might  have  defended  it ;  in  which  case  th 
record  is  conclusive  against  the  delinquent  party,  as  to  all  the  ma 
terial  facts  recited  in  it.^ 

§  117.  The  count  for  money  had  and  received^  which  in  its  spiri 
and  objects  has  been  likened  to  a  bill  in  equity,  may  in  general  b 
proved  by  any  legal  evidence,  showing  that  the  defendant  has  re 
ceived  or  obtained  possession  of  the  money  of  the  plaintiff,  which 
in  equity  and  good  conscience,  he  ought  to  pay  over  to  the  plain 
tiff.  The  subject  of  the  action  must  either  originally  have  bee] 
money ;  or  that  which  the  parties  have  agreed  to  treat  a 
money  ;  or,  if  originally  goods,  sufficient  time  must  have  elapsed 
with  the  concurrence  of  circumstances,  to  justify  the  inferenc 
that  they  have  been  converted  into  money.  It  is  a  liberal  action 
in  which  the  plaintiff  waives  all  tort,  trespass,  and  damages,  am 
claims  only  the  money  which  the  defendant  has  actually  received, 

1  Pitcher  v.  Bailey,  8  East,  171 ;  Eyles  ing  notice  is  not  in  order  to  give  a  groun 
V.  Faikney,  Id.  172,  n. ;  Peakc's  Cas.  143,  for  action  ;  but  if  a  demand  be  made  whic 
n.  S.  C. ;  Martyn  v.  Blithman,  Yelv.  197;  the  party  indemnifying  is  bound  to  pay,  an 
Chitty  on  Contracts,  pp.  526,  527  ;  Ayer  notice  be  given  to  him,  and  he  refuse  1 
V.  Hutchins,  4  Mass.  .370;  Denny  v.  Lin-  defend  the  action,  in  consequence  of  whic 
coin,  5  Mass.  385  ;  Churchill  v.  Perkins,  Id.  the  person  indemnified  is  obliged  to  pay  th 
541  ;  Hodgson  v.  Wilkins,  7  Greenl.  113.  demand,  that  is  equivalent  to  a  judgmen 

2  Ante,  Vol.  1,  §  527.  and  estops  the  other  party  from  saying,  thi 

3  Ante,  Vol.  1,  §§  527,  538,  539;  Smith  the  defendant,  in  the  lirst  action,  was  nc 
r.  Comi)ton,3  B.  &  Ad.407.  "  It  is  always  bound  to  pay  the  money."  See  1  Sniiili 
advisable, "  observes  Mr.  Smith,  "for  the  Leading  Cases,  70,  71,  note.  [No  actio 
surety  to  let  his  principal  know  when  he  is  lies  to  recover  back  money  paid  under  a 
threatened,  and  request  directions  from  erroneous  judgment  which  is  still  unr 
liim;  for  the  rule  laid  down  by  the  King's  versed.  Wilbur  v.  Sproat,  2  Gray,  431.] 
Bench,  in  Smith  v.  Compton,  is,  that  the  *  Anon.  Lofft,  P.  320 ;  Feltham  v.  Te 
effect  of  want  of  notice  (to  the  principal)  ry,  cit.  Cowp.  419;  Moses  v.  MacFcrian, 
is  to  let  in  the  party  wiio  is  called  uj)on  for  Burr.  1005 ;  Eastwick  v.  Hugg,  1  Dall.  22S 
an  indemnity,  to  show  that  the  plaintiff  has  Lee  v.  Shore,  1  B.  &  C.  94  ;  Cowp.  749,  p( 
no  claim  in  respect  of  the  alleged  loss,  or  Ld.  Mansfield;  4  M.  &  S.  748,  per  Ld.  E 
not  to  the  amount  alleged ;  that  he  made  lenborough.  But  see  Miller  v.  Atlec,  1 
an  improvident  bargain,  and  that  the  de-  Jur.  431 ;  [Bartlett  r.Bramhali,3  Gray,26( 
fendant  miglit  have  obtained  better  terms,  Tiio  rule,  that  the  phiiutilf,  when  he  waiv( 
if  an  opportunity  had  been  given  him.  .  .  .  the  tort  and  brings  assumpsit,  is  limited  i 
The  effect  of  notice  to  an  indemnifying  his  damages  to  the  money  actually  receive 
party  is  stated  by  Bullard,  J.,  in  Duffield  by  the  defendant  and  interest  thereon,  is  tl 
».  Scott^  3  T.  li.  374.     The  purpose  of  giv-  same  in  a  case  where  the  plaintiff  has  e 


PART  IV.] 


ASSUaiPSIT. 


99 


But  if  the  defendant  has  any  legal  or  equitable  lien  on  the  money, 
or  any  right  of  cross  action  upon  the  same  transaction,  the  plain- 
tiff can  recover  only  the  balance,  after  satisfying  such  counter 
demand.^ 

§  118.  In  regard  to  things  treated  as  money,  it  has  been  held, 
that  this  count  may  be  supported  by  evidence  of  the  defendant's 
receipt  of  bank-notes  ;  ^  or  promissory  notes  ;  ^  or  credit  in  ac- 
count, in  the  books  of  a  third  person  ;  ^  or  a  mortgage,  assigned 
to  the  defendant  as  collateral  security,  and  afterwards  foreclosed 
and  bought  in  by  him  ;  ^  or  a  note  payable  in  specific  articles  ;  ^ 
or  any  chattel."  But  not  where  the  thing  received  was  stocks,^ 
goods,^  or  any  other  article  ;  unless,  in  the  understanding  of  the 
parties,  it  was  considered  and  to  be  treated  as  money  ;  or  unless 
it  was  intended  to  be  sold  by  the  receiver,  and  suflticient  time 
has  elapsed  for  that  purpose.^''  If  the  defendant  was  the  agent 
of  the  plaintiff,  and  the  evidence  of  his  receipt  of  the  money  is  in 
his  own  account,  rendered  to  his  principal,  tliis  will  generally  be 
conclusive  against  him,  unless  he  can  clearly  show,  that  it  was 
unintentionally  erroneous. ^^     And  if  the  agent  or  consignee  of 


remedy  in  trover  or  trespass.  Shaw  v. 
Beckett,  7  Cush.  442 ;  Dow  v.  Sudbury,  5 
Met.  73.]  [*  Where  a  check  is  wrongfully 
transferred  and  cashed,  without  considera- 
tion having  been  given  for  it  to  the  full 
nmount,  the  maker  of  the  check,  not  hav- 
ing been  liable  to  the  full  amount,  will  be 
entitled  to  recover  back  the  excess  in  an 
action  for  money  had  and  received  to  his 
use.  Watson  u.  Russell,  9  Jur.  N.  S. 
249.] 

1  Simpson  v.  Swan,  3  Campb.  291 ;  Eddy 
V.  Smith,  13  Wend.  488;  Clift  v.  Stock- 
don,  4  Litt.  217 ;  [Bartlett  v.  Bramhall,  3 
Gray,  260.] 

-  Pickard  v.  Bankes,  13  East,  20 ; 
Lowndes  v.  Anderson,  13  East,  130;  Ma- 
son V.  Waite,  17  Mass.  560;  Anslie  v.  Wil- 
son, 7  Cow.  662. 

^  Flovd  V.  Day,  3  Mass.  405  ;  Hinkley  v. 
Fowle,  4  Shepl.  285 ;  Tuttle  i\  Mayo,  7 
Johns.  132 ;  Fairbanks  v.  Blackinton,  9 
Pick.  93.  If  the  plaintiff,  under  this  count, 
files  a  bill  of  particulars,  stating  his  claim 
to  be  for  the  amount  of  a  promissory  note, 
which  ho  describes,  he  \vill  not  be  permitted 
to  give  evidence  of  the  pre-existing  debt  for 
which  the  note  was  given.  Bank  U.  States 
V.  Lyman,  5  Washb.  666 ;  [Tebbetts  v.  Pick- 
ering, 5  Cush.  81.  A  cash  draft  accepted 
may  be  given  in  evidence  under  a  courit  for 
money  had  and  received  in  an  action  by  a 
payee  against  the  acceptor.    Wells  v.  Brig- 


ham,  6  Cush.  6 ;  Osgood  v.  Parsons,  4 
Gray,  455.]  [*  A  railway  bond,  payable  to 
bearer,  is  a  negotiable  instrument,  and  may 
be  declared  upon  and  described  in  an  action 
of  assumpsit  as  a  "  bond  " ;  and  a  count 
thereon  describing  the  cause  of  action  as  a 
"  bond,"  and  setting  forth  the  promise  con- 
tained in  the  bond,  need  not  aver  a  consid- 
eration, and  may  be  joined  with  tlie  common 
counts  in  indebitatus  assumpsit.  Ide  v.  Pas- 
surapsic  &  Conn.  R.  R.  R.  Co.,  32  Vt.  297.] 

*  Andrew  v.  Robinson,  3  Campb.  199. 

^  Gilchrist  v.  Cunningham,  8  Wend. 
641. 

6  Crandall  v.  Bradley,  7  Wend.  311; 
[Taplin  v.  Packard,  8  Barb.  200.] 

'  Arms  V.  Ashley,  4  Pick.  71 ;  Mason  v. 
Waite,  17  Mass.  560. 

8  Nightingal  v.  Devisme,  2  Burr.  2589 ; 
Jones  V.  Brinley,  1  East,  1 ;  Morrison  v. 
Berkev,  7  S.  &  R.  246. 

9  Leerv  v.  Goodson,  8  T.  R.  687  ;  White- 
hall V.  Bennett,  3  B.  &  P.  559. 

13  McLachan  v.  Evans,  1  Y.  &  Jer.  380 ; 
Longchamp  v.  Kennev,  I  Doug.  117. 

11  Shaw  V.  Picton,  4  B.  &  C.  717,  729: 
Shaw  V.  Dartnall,  6  B.  &  C.  56.  "Where  a 
factor  sold  goods  on  credit,  to  a  person  no- 
toriously insolvent,  taking  the  note  of  the 
purchaser,  payable  to  himself,  and  passing 
the  amount  to  liis  principal's  credit  in  ac- 
count, as  money,  which  he  afterwards  paid 
over;  it  was  held,  that  he  ivas  not  entitled. 


100  LAW   OF  EVIDENCE.  [PART 

property  to  be  sold  refuses  to  render  any  account,  it  will,  after 
reasonable  time,  be  presumed,  if  the  contrary  do  not  appear,  tli 
he  has  sold  the  goods,  and  holds  the  proceeds  in  his  hands. ^ 

§  119.  Where  the  money  was  delivered  to  the  defendant  for 
particular  purpose,  to  which  he  refused  to  apply  it,  he  cannot  apj: 
it  to  any  other,  but  it  may  be  recovered  back  by  the  depositor,  n 
der  the  count  for  money  had  and  received.^  If  it  was  placed 
his  hands  to  be  paid  over  to  a  third  person,  which  he  agreed  to  d 
such  person,  assenting  thereto,  may  sue  for  it  as  money  had  ai 
received  to  his  own  use.^  But  if  the  defendant  did  not  conse 
so  to  appropriate  it,  it  is  otherwise,  there  being  no  privity  betwei 
them  ;  and  the  action  will  lie  only  by  him,  who  placed  the  mon 
in  his  hands.*  If  the  money  was  delivered  with  directions 
appropriate  it  in  a  particular  manner  for  the  use  of  a  third  perso 
it  has  been  held,  that  the  party  depositing  the  money  might  cou 
termand  the  order,  and  recover  back  in  this  action,  at  any  tin 
before  the  receiver  had  paid  it  over,  or  entered  into  any  arrano 
ment  with  the  other  party,  by  which  he  would  be  injured,  if  tl 
original  order  was  not  carried  into  effect.^  But  if  the  money  h 
been  deposited  in  the  hands  of  a  trustee,  for  a  specific  purpos 
Buch  as  for  the  conducting  of  a  suit  by  him,  as  the  party's  attc 
ney,  or  by  two  litigating  parties,  in  trust  for  the  prevailing  part 
it  cannot  be  recovered  back  in  this  action  till  the  trust  is  satisfied 
So,  if  money  has  been  paid  upon  a  condition  which  has  not  bet 
complied  with,  it  cannot  be  recovered  as  money  had  and  receive 
to  the  payer's  use." 

§  120.  The  count  for  money  had  and  received  may  also  be  su] 
ported  by  evidence,  that  the  defendant  obtained  the  plaintiffs  moi 
ey  by  fraud,  or  false  color  or  pretence.^     Thus,  where  one  having 

upon  the  failure  of  the  purchaser,  to  recover  2  pg  Bernales  i\  Fuller,  14  East,  590, 
elui  money  back  from  the  principal.  Simp-  »  Com.  Dig-.  205,  206,  Assumpsit,  E. 
son  V.  Swan,  3  Campb.  291.     But  where,         *  Williams  v  Everett,  14  East,  582;  Hj 

after  the  goods  were  consigned,  but  before  r.  Marston,  17  Mass.  575,  579;   Grant 

the  sak',  the  principal  drew  bills  on  the  f  ic-  Austin,  3  Price,  58. 
tor  for  the  value,  which  he  accepted ;  after         ^  Gibson  v.  Minet,  Ry.  &  M.  68 ;  1  C. 

which  he  >oId  the  goods  to  a  person  in  good  P.  247,  S.  C. ;  9  Moore,' 31,  S.  C. ;  2  Binj 

credit,  taking  notes  payable  to  himself  and  7.  S.  C, ;  Lyte  v.  Peny,  Dy.  49,  a;  Tayh 

rendered  to  the  principal  an  account  of  the  v.  Lendey,  9  East,  49. 
sale  as  for  cash,  not  naming  the  purchaser,         6  q^^q  ^    Roberts,   Holt's     Cas.    50C 

and  the  latter  afterwards,  and  before  the  Ker  v.  Osborn,  9  East,  378.     See  2  Stoi 

maturity  of  the  notes,  became  insolvent;  on  Eq.  Juris.  §  793  a,  793  b. 
the  jjrincipal  was  held  liable  to  refund  the         '  Uardingham  v.  Allen,  5  M.  G.  &  I 

money  to  the  factor,  in  this  action.    Greely  793  ;  17  Law  J.  198,  C.  P. 
V.  Bartlett,  3  Gr^enl.  172.  »  Steph.  N.  P.  335  ;  Bliss  i.  Thcmpsoi 

1  2  Stark.  Ev.  63;    Selden  v.  Bcale,  3  4  Mass.  488;  sn]>ra,  §  108;  Lyon  v.  Ai 

Greenl.  178.  nable,  4  Conn.  330. 


PART  IV.]  ASSUMPSIT.  101 

wife  living,  fraudulently  married  another,  and  received  the  rents 
of  her  estate,  he  was  held  liable  to  the  latter,  in  this  form  of  ac- 
tion,^ And  where  the  defendant  has  tortiously  taken  the  plaintiff's 
property,  and  sold  it,  or  being  lawfully  possessed  of  it,  has  wrong- 
fully sold  it,  the  owner  may,  ordinarily,  ivaive  the  tort,  and  recover 
the  proceeds  of  the  sale  under  this  count.^  So,  if  the  money  of  the 
plaintiff  has  in  any  other  manner  come  to  the  defendant's  hands, 
for  which  he  would  be  chargeable  in  tort,  the  plaintiff  may  waive 
the  tort,  and  bring  assumpsit  upon  the  common  counts.  But  this 
rule  must  be  taken  witli  tliis  qualification :  that  the  defendant  is 
not  thereby  to  be  deprived  of  any  benefit,  which  he  could  have  de- 
rived under  the  appropriate  form  of  action  in  tort.^  Thus,  this 
count  cannot  be  supported,  for  money  paid  for  the  release  of  cattle 
distrained,  damage-feasant,  though  the  distress  was  wrongful,  where 
the  right  of  common  is  the  subject  of  dispute,*  nor  even  where, 
though  the  distress  was  lawful,  the  sum  demanded  in  damages  was 
excessive,  if  there  had  been  no  tender  of  amends,^  nor  for  money 
received  for  rent,  where  the  title  to  the  premises  is  in  question  be- 
tween the  parties ;  ^  nor  in  any  other  case,  where  the  title  to  real 
estate  is  the  subject  of  controversy ;  that  being  a  question,  which, 
ordinarily,  cannot  be  tried  in  this  form  of  action.'^ 

1  Hasser  v.  Wallace,  1  Salk.  28.  of  detinue   to   i-ecover   them   back  would 

2  Siipm,  §  117.  But  the  goods  must  have  been  maintainable.  That  is  the 
have  been  sold,  or  this  count  cannot  be  mode  pointed  out  by  the  law,  but,  instead 
maintained.  Jones  v.  Hoar,  .5  Pick.  28.5.  of  followinp;  that,  the  plaintiff  pays  the 
And  there  must  be  a  tort,  to  be  waived,  sum  demanded,  under  protest,  and  brings 
for  whicli  trespass  or  case  would  lie.  Bige-  tliis  form  of  action  of  money  had  and  re- 
low  V.  Jones,  10  Pick.  161  ;  [Bartlett  v.  ceived,  in  order  to  recover  it  back.  The 
Bramhall,  3  Gray,  260.]  objection  to  that  is,  that  the  law  has   cast 

^  Lindon  v.  Hooper,  Co^vp.  414,  419;  on  him  the  duty  of  tendering  tlie  proper 
Anscotnl^  >\  Shore,  1  Campb.  285  ;  Young  amount  of  compensation,  whereas  the  ef- 
V.  Marshall,  8  Bing.  43.  feet  of  allowing  the  present  action  to  lie 
*  Lindon  v.  Hooper,  Cowp.  414.  would  be  to  cast  the  burden  of  ascertain- 
^  Gulliver  v.  Cosens,  9  Jur.  666.  The  ing  the  right  amount  on  the  other  party, 
reason  for  this  was  stated  by  Coltman,  J.,  Tliis  case  is  different  from  that  of  a  carrier, 
in  the  following  terms  :  "  The  plaintiff,  if  wliere  the  action  of  money  bad  and  received 
he  had  desired  to  recover  his  cattle,  should  has  been  held  to  lie,  for  there  tlie  carrier, 
have  rejilevied.  It  is  true,  that,  if  he  had  by  claiming  more  than  he  is  entitled  to,  is 
done  so,  there  would  have  been  an  avowry  the  wrongdoer.  Neither  does  this  projjerly 
hy  the  defendant,  which  the  plaintiff  could  come  within  the  case  of  money  ]iaid  under 
not  have  successfully  resisted ;  but  he  duress  of  goods,  for  duress  implies  an  il- 
miglit  have  allowed  judgment  in  the  re-  legal  detention ;  but  hfere  the  defendant 
plevin  suit  to  have  passed  against  him  for  comes  into  and  keeps  possession  of  the  cat- 
default  of  prosecution,  upon  which  an  tie  in  a  way  which  the  law  does  not  con- 
award  of  a  return  to  the  other  party  would  si der  wrongful."  See  1  Man.  Gr.  &  Sc. 
have  been  made,  after  which  the  parties  788,  S.  C,  but  not  so  fully  reported, 
would  iiave  been  remitted  to  their  former  ^  Cunningham  v.  Lawrents,  1  Bac.  Abr. 
situation.  It  would  then  have  been  for  260,  n. ;  Newsome  v.  Graham,  10  B.  &  C. 
the   plaintiff  to   have   tendered   sufficient  334. 

nmonds;  and,  if  the  defendant  afterwards  ^  1  Chitty  on  PI.  9.5,  96,  121  ;  Binney 

refused  to  deliver  up  the  cattle,  an  action  v.  Chapman,  5  Pick.  130;  Miller  u.  Miller, 


102 


LAW   OF   EVIDENCE. 


[part  IV. 


§  121.  Under  this  count,  the  plaintiff  may  also  recover  back 
money  proved  to  have  been  obtained  from  him  by  duress,  extortion, 
imposition,  or  taking  any  undue  advantage  of  his  situation,  or  other- 
wise involuntarily  and  wrongfully  paid  ;  as  by  demand  of  illegal  fees 
or  claims,^  tolls,^  duties,  taxes,  usury,  and  the  like,  where  goods 
or  the  person  were  detained  until  the  money  has  been  paid.^  So, 
where  goods  were  illegally  detained  as  forfeited  ;  *  or,  where  money 
was  unlawfully  demanded  and  paid  to  a  creditor,  to  induce  him  to 
sign  a  bankrupt's  certificate  ;  ^  or,  where  a  pawnbroker  refused  to 
deliver  up  the  pledge,  until  a  greater  sum  than  was  due  was  paid 
to  him.^  So,  if  the  money  had  been  paid  under  an  usurious,  or 
other  illegal  contract,  where  the  plaintiff  is  not  in  pari  delicto  with 
the  defendant ;  "^  or,  for  a  consideration  which  Xm's,  failed  ;^  or,  where 


7  Pick.  133  ;  Codman  v.  Jenkins,  14  Mass. 
96  ;  Baker  v.  Howell,  6  S.  &  R.  481.  But 
the  right  to  an  office  may  be  tried  in  this 
form  of  action,  if  the  plaintiff  has  once 
been  in  possession.  Allen  v.  McKeen,  1 
Snmn.  31 T;  Green  v.  ITcwitt,  Peake's 
Cas.  182  ;  Rex  v.  Bp.  of  Chester,  1  T.  R. 
396,  403. 

1  Morgan  v  Palmer,  2  B.  &  C.  729  ; 
Dew  V.  Parsons,  1  Chitty,  R.  29.5  ;  2  B.  & 
Ad.  562,  S.  C. ;  Walker  v.  Ham,  2  N. 
Hamp.  238  ;  Clinton  v.  Strong,  9  Johns. 
370 ;  Wakefield  v.  Newbon,  6  Ad.  &  El. 
276,  N.  S.  Even  though  the  money  were 
received  and  illegally  claimed  by  a  corpo- 
ration. Hall  V.  Swansea,  5  Ad.  &  El. 
526,  N.  S.  See  further,  as  to  the  princi- 
pal point,  Close  v.  Phillips,  7  M.  &  G. 
586. 

2  Fearnley  v.  Morley,  5  B.  &  0.  25  ; 
Chase  V.  Dwinel,  7  Greenl.  135. 

3  Shaw  V.  V/oodcock,  9  D.  &  R.  889  ;  7 
B.  &  C.  73,  S.  C. ;  Amesbury  v.  Ames- 
bury,  17  Mass.  461;  Perry  w. "  Dover,  12 
Pick.  206 ;  Atwater  v.  Woodbridge,  6 
Conn.  223;  Elliott  v.  Swartwout,  10  Pet. 
137  ;  Parker  v.  Great  Western  Railw.  Co., 

8  Jur.  194  ;  7  Scott,  N.  R.  835  ;  7  M.  & 
G.  253,  S.  C. ;  Valpv  v  Manley,  9  Jur. 
452  ;  I  M.  G.  &  Sc.'594  ;  [*  Sartwell  v. 
Horton,  28  Vt.  370.]  [Payment  to  a  col- 
lector of  taxes,  who  has  a  tax-bill  and 
warrant  for  levying  the  same,  in  the  form 
prescribed  by  law,- is  not  a  vohmtary  pay- 
ment, but  is  compulsory,  and  if  tlie  wliole 
tax  be  illegally  assessed,  oRsumpxit  will  lie 
to  recover  it  back.  Joyner  v.  Egrcmont, 
3  Cush.  567  ;  aliter  as  it  seems,  where  the 
tax  is  not  entirely  void,  the  remedy  then 
being  by  appeal.  Wright  v.  Boston,  9  lb. 
233.  Such  a  payment,  if  made  without 
protest,  is  a  voluntary  payment,  and  the 

8  1  Steph.  N.  P 


sum  paid  cannot  be  recovered  back.  New 
York  &  H.  R.  R.  Co.  v.  Marsh,  2  Kernan, 
308.  See  also  Allentown  v.  Saegcr,  20 
Penn.  State  R.  (8  Harris)  421.  Illegal 
taxes,  assessed  under  color  of  law  and  vol- 
untarily paid,  cannot  be  recovered  bock; 
Christy  v.  St.  Louis,  20  Mis.  143.  Pay- 
ment to  a  carrier  who  refuses  to  deliver 
goods  except  on  the  payment  of  a  much 
larger  sum  than  is  his  due,  is  a  payment 
under  duress,  and  the  sum  so  paid  may  be 
recovered  back.  Harmony  v.  Binham,  2 
Kernan,  99.] 

*  Irving  V.  Wilson,  4  T.  R.  485. 

6  Smith  V.  Bromley,  2  Doug.  696,  n.  j 
Cockshott  V.  Bennett,  2  T.  R.  763  ;  Stock 
V.  Mawson,  1  B.  &  P.  286.  See  Wilson 
V.  Ray,  10  Ad.  &  El.  82.  [*  Or  where 
money  was  paid  to  one  creditor  more  than 
to  other  creditors,  to  induce  him  to  sign  a 
composition  deed.  Atkinson  v.  Denliy,  8 
Jur.  N.  S.  1012.  In  this  case  Cockburn, 
C.  J.  said,  "  Where  creditors  are  all  to  re- 
ceive a  proportionate  sum  in  respect  of 
their  debts,  and  one  person  withholds  his 
consent  unless  a  certain  sum  be  paid  him, 
it  is  doubtless  the  policy  of  the  law  not  to 
uphold  such  a  transaction,  which  is  a  de- 
lictum, bocli  in  the  person  paying  and  in 
the  person  receiving  ;  but  it  is  not  par  de- 
lirium in  each,  for  one  has  the  power  to 
dictate,  and  the  other  has  no  choice  but  to 
submit  or  suffer  serious  detriment."] 

6  Astley  V.  Reynolds,  2  Str.  915 ;  1  Selw. 
N.  P.  83,  note. 

■   1  Steph.  N.  P.  335 -341  ;  supra,  §  111  ; 

I  Selw.  N.  P.  84  -  94 ;  Worcester  v  Eaton, 

II  Mass.  376;  Boardman  v.  T\z<f,  13 
Mass.  105  ;  Wheaton  i'.  Hibbard,  20 
Johns.  290 ;  Merwin  v.  Huntington,  2 
Conn.  209.  And  see  Perkins  v.  Savage, 
15  Wend.  412;  White  v.  Erankhn  Bank, 

330-333,  345. 


FART  IV.]  ASSUMPSn  lU3 

the  goods  of  the  plaintiff  have  heen  seized  and  sold  by  the  defendant, 
under  an  execution  to  which  ho  was  a  stranger ;  ^  or,  under  a  con- 
viction, which  has  since  been  quashed,  or  2i.  judgment,  which  has  since 
been  reversed,  the  defendant  having  received  the  money ;  -  or,  under 
terror  of  legal  process,  which,  though  regularly  issued,  did  not  au- 
thorize the  collection  of  the  sum  demanded  and  paid.^  So,  where 
the  person  is  arrested  for  improper  purposes  without  just  cause  ;  or, 
for  a  just  cause,  but  without  lawful  authority ;  or,  for  a  just  cause 
and  by  lawful  authority,  but  for  an  improper  purpose  ;  and  pays  mon- 
ey to  obtain  his  discharge,  it  may  be  recovered  under  this  count.* 

§  122.  This  count,  ordinarily,  may  also  be  proved  by  evidence, 
that  the  plaintiff  paid  the  money  to  the  defendant  upon  a  security, 
afterwards  discovered  to  be  a  forgery ;  provided  the  plaintiff  was 
not  bound  to  know  the  handwriting,  or  the  defendant  did  not  re 
ceive  the  money  in  good  faith.  Thus,  where  the  defendant,  becom 
ing  possessed  of  a  lost  bill  of  exchange,  forged  the  payee's  indorse- 
ment, and  thereupon  obtained  its  acceptance  and  payment  from 
the  drawees,  he  was  held  liable  to  refund  the  money  in  this  action, 
though  the  bill  was  drawn  by  a  commercial  house  in  one  country, 
upon  a  branch  of  the  same  house  in  another.^  An  acceptor,  how- 
ever, is  bound  to  know  the  handwriting  of  the  drawer  of  the  bill ; 
and  a  banker  is  in  like  manner  bound  to  know  the  handwriting 
of  his  own  customers ;  so  that,  in  general,  where  they  pay  money 
upon  the  forgery  of  such  signatures,  to  an  innocent  holder  of  the 
paper,  the  loss  is  their  own.^  Yet  where  a  banker  paid  a  bill  to 
a  remote  indorsee,  for  the  honor  of  his  customer,  who  appeared  as 
a  prior  indorser,  but  whose  signature  was  forged,  and,  on  discovery 
of  the  forgery,  he  gave  notice  thereof,  and  returned  the  bill  to  the 
holder,  in  season  for  him  to  obtain  his  remedy  against  the  prior 
actual   indorsers,   it  was  held,   that  he   might,  for   this   reason, 

22  Pick.  181,186-189.     [*  A  person  who  *  Bull.  N.  P.   172,   173;  5  Com.  Dig. 

has    authorized     the    application    of   his  Pleader,  2  W.  19  ;  Richardson  y.  Duncan, 

money  to  an  illegal  purpose  can  recover  it  3   N.    Hamp.  508 ;    Watkins  v.  Baird,  6 

before  it  has  been  paid  over  or  applied  to  Mass.  506. 

such  purpose.     Bone  v.  Ekless,  29  L.  J.  *  Cheap  v.   Harley,  cit.  3  T.  E.    127. 

Exch.  438.]  [*  Assumpsit  lies  to  recover  back  money 

1  Oughton  V.  Seppings,  I  B.  &  Ad.  241.  paid  to  a  broker  for  a  note,  the  signature 

2  Feltham  v.  Terry,  cit.  Co\vp.  419  ;  1  to  which  is  forged,  sold  by  him  without 
T.  &  R.  387  ;  Bull.  N.  P.  131  ;  1  Steph.  disclosing  his  principal,  although  he  has 
N.  P.  357-359.  See  the  cases  cited  in  1  paid  the  money  to  his  principal,  and  al- 
U.  S.  Digest,  pp.  293,  294.  [But  not  if  though  the  note  was  sold  for  a  sum  less 
the  judgment  is  still  unreversed.  Wilbur  tlian  its  face.  Merriam  v.  Wolcott,  3  Allen, 
w.  Sproat,  2  Gray,  431.]  258.] 

3  Snowdon  v.  Davis,  1  Taunt.  359.  ^  Price  v.  Neale,  3  Burr.  1354 ;  Smith 
But  see   Marriott   v.  Hampton,  7  T.  R.  v.  Mercer,  6  Taunt.  76. 

269  ;  2  Esp.  546. 


104  LAW   OF   EVIDENCE.  [PART  IV. 

recover  back  the  money  of  the  holder.^  But  where  one  wrote  his 
check  so  carelessly  as  to  be  easily  altered  to  a  larger  sum,  so  that 
the  banker,  when  he  paid  it,  could  not  discover  the  alteration,  it 
was  held  to  be  the  loss  of  the  drawer.^  So,  if  lost  or  stolen 
money,  or  securities,  have  come  to  the  defendant's  hands,  mala 
Ude,  the  owner  may  recover  the  value  in  this  form  of  action .^ 

§  123.  In  this  manner,  also,  money  is  recovered  back,  which 
lias  been  paid  under  a  mistake  of  facts.  But  here  the  plaintiff 
must  show  that  the  mistake  was  not  chargeable  to  himself 
alone ;  *  unless  it  was  made  through  forgetfulness,  in  the  hurry 
of  business,  in  which  case  it  may  be  recovered.^  But  if  it  was 
paid  into  court,  under  a  rule  for  that  purpose,  it  is  conclusive  on 
the  party  paying,  even  though  it  should  appear  that  he  paid  it 
erroneously.^  Nor  can  money  paid  under  a  mistake  of  facts  be 
reclaimed,  where  the  plaintiff  has  derived  a  substantial  benefit 
from  the  payment ;  '^  nor,  where  the  defendant  received  it  in  good 
faith,  in  satisfaction  of  an  equitable  claim ;  ^  nor  where  it  was  due 
in  honor  and  conscience.^  The  laivs  of  a  foreign  country  are 
regarded,  in  this  connection,  as  matters  of  fact ;  and  therefore 
money  paid  under  a  mistake  of  the  law  of  another  State  may 
be  recovered  back.  Juris  ignorantia  est,yMS  nostrum  ignoramus.^^ 
But  it  is  well  settled,  that  money  paid  under  a  mistake  or  igno- 
rance of  the  law  of  our  own  country,  but  with  a  knowledge  of  the 
facts  or  the  means  of  such  knowledge,  cannot  be  recovered  back.^^ 

1  Wilkinson  v.  Johnson,  3  B.  &  C.  428 ;  ®  Farmer  v.  Arundel,  2  W.  BI.  824,  per 
[Jones  V.   Ryder,  5   Taunt.   488 ;   Cabot     De  Grey,  C.  J. 

Bank  y.  Morton,  4  Gray,  158.]  ^'^  Haven  v.   Foster,    9  Pick.  112,  118; 

2  Young  I'.  Grote,  4  Bing.  253.  Story  on  Contr.  §  408. 

8  1  Stepli.  N.  P.  353-355.    But  a  party  "  Chitty  on  Contr.  490,  491  ;  1  Story  on 

receiving  a  stolen  bank-note  bona  fide  and  Contr.  §  407;    Elliott  v.   SwartVvout,  10 

for  value,  may  retain  it  against  tlie  former  Pet.  147.     [Ignorance  of  the  law  of  a  for- 

owner,    from   whom   it   has    been    stolen,  eign  government  is  ignorance  of  fact,  and 

Miller  v.  Race,  1   Burr.   452.     So   in  the  in  this  respect  the  statute  laws  of  other 

case  of  any  other  negotiable  instrument  States    of    the    Union   are   foreign    laws. 

actually  negotiated.      1    Smith's  Leading  Bank   of  Chillicothe   v.    Dodge,  8  Barb. 

Cases,  p.  258-263    (Am.   ed.) ;    43  Law  233.     If  the  consideration  of  a  note  by  an 

Lib.  362-368.  agent  is  money  advanced  to  liim  for  the 

*  Milnes  v.  Duncan,  6  B.  &  C.  671,  per  use  of  his  principal,  under  a  mutual  mis- 

Bayley,    J.  ;     Hamlet    v.    Richardson,    9  take  of  the  legal  capacity  of  the  jjriiK'ijial 

Bing.  647;    Story  on  Contr.    §  407-411.  to  authorize  tlie  giving  of  such  note  by  his 

If  one  by  mistake  pay  tiie  debt  of  another,  agent,  and  the  lender,  finding  that  neither 

he  may  recover  it   back  of  him  who  re-  the    principal    nor   the   agent    is   legally 

ceived   it,   unless   the  latter   was   injured  bound  upon  the  note,  demands  the  money 

by  the  mistake.     Tybout  y.  Thompson,  2  of  the  agent  before  it  is  paid  over  to  his 

Browne,  27.  principal,  he  may  recover  it  of  the  agent 

^  Lucas  V.  Worswick,  1  M.  &  Rob.  293.  in  an   action   of  monev  liad  and  received. 

«  2  T.  R.  648,  per  Buller,  J.  Jefts  v.  York,  10  Cnsh.  .39;5.     Where  one 

"^  Norton  i'.  Mardcn,  3  Sliepl.  45.  witli  a  full  knowledge  of  the  facts  volinita- 

'  Moore  v.  Eddowes,  2  Ad.  &  El.  133.  rily  pays  a  demand  unjustly  made  on  hiuo 


PART  rv.] 


ASSUMPSIT. 


105 


§  124.  This  count  may  also  be  supported  by  proof,  that  tlie 
defendant  has  received  money  of  the  plaintiff  upon  a  eonsidera- 
tion  ivhich  has  failed;^  as,  for  goods  sold  to  the  plaintiff,  but 
never  delivered ;  ^  or,  for  an  annuity  granted,  but  afterwards  set 
aside  ;  ^  or,  as  a  deposit  on  the  purchase  of  an  estate  by  the  plain- 
tiff, to  which  the  defendant  cannot  make  the  title  agreed  for ;  * 
or,  where  payment  has  been  innocently  made  in  counterfeit  bank- 
notes, or  coins,  if  the  plaintiff  has  offered  to  return  them,  within 
a  reasonable  time.^  So,  where  the  money  was  paid  upon  an  agree- 
ment which  has  been  rescinded,^  whether  by  mutual  consent,  or  by 
reason  of  fault  in  the  defendant ;  the  plaintiff  showing  that  the 
defendant  has  been  restored  to  his  former  rights  of  property,  with- 
out unreasonable  delay.'^  But  if  the  agreement  has  been  par- 
tially executed,  and  the  parties  cannot  be  reinstated  in  statu  quo, 
the  remedy  is  to  be  had  only  under  a  special  count  upon  the  con- 
tract.^ Thus,  where  A  was  let  into  possession  of  a  house  belong- 
ing to  B,  under  a  parol  agreement  with  the  latter,  that  if  A  would 
make  certain  repairs,  he  should  receive  a  lease  for  twelve  years  ; 

N.  S.  477;  7  Jur.  (N.  S.)  71,  supporting 
this  last  proposition.  Where  money  has 
been  paid  to  an  aj;ent  under  a  mistake  of 
fact,  and  the  agent  has  either  paid  it  over 
or  settled  his  account  with  iiis  principal, 
and  is  guilty  of  no  fraud  in  the  matter,  he 
is  not  liable  to  refund  the  money.  Hol- 
land V.  Russell,  9  W.  R.  737.] 

1  Chitty  on  Contr.  487-490;  1  Steph. 
N.  P.  330-332  ;  Spring  v.  Coffin,  10  Mass. 
34.  But  in  this  form  of  action,  no  dama- 
ges ai'e  recovered  be3'ond  the  money  actu- 
ally paid,  and  the  interest.  Neel  v.  Deans, 
1  Nott  &  M'C.  210. 

2  Anon.,  1  Stra.  407. 

3  Shove  V.  Webb,  I  T.  R.  732. 

*  Alpass  I'.  Watkins,  8  T.  R.  .516;  El- 
liott V.  Edwards,  3  B.  &  P.  181  ;  Eames  i\ 
Savage,  14  ^Nlass.  425.  The  plaintiff  in 
such  case  must  show,  that  he  has  tendered 
the  pm-chase-money  and  demanded  a  title. 
Hudson  V.  Swift,  20  Johns.  24.  See  also 
Gillett  V.  Maynard,  5  Johns.  85. 

5  Young  V.  Adams,  6  Mass.  182  ;  Mar- 
kle  V.  Hatfield,  2  Johns.  455  ;  Keene  r. 
Thompson,  4  Gill  &  Johns.  463  ;  Salem 
Bank  v.  Gloucester  Bank,  17  Mass.  1  ;  Id. 
33  ;  Raymond  v.  Baar,  13  S.  &  R.  318. 

"  Gillett  V.  Maynard,  5  Johns.  85 , 
Bradford  v.  Manley,  13  Mass.  139;  Con- 
nor V.  Henderson,  15  Mass.  319. 

7  Percival  v.  Blake,  2  C.  &  P.  514; 
Cash  V.  Giles,  3  C.  &  P.  407  ;  Reed  v.  Mc- 
Grew,  5  Ham.  (Ohio)  R.  386;  Warner  v. 
Wheeler,  1  Cliipm.  159. 

8  Hunt  V.  Silk,  5  East,  449  ;  Reed  r. 
Blandford,  2  Y.  &  J.  278. 


and  attempted  to  be  enforced  by  legal 
proceedings,  he  cannot  recover  back  the 
money,  as  paid  by  compulsion,  unless 
there  be  fraud  in  the  party  enforcing  the 
claim,  and  a  knowledge  that  the  claim  is 
unjust ;  and  the  case  is  not  altered  by  the 
fact  that  the  party,  so  paying,  protests  that 
he  is  not  answerable,  and  gives  notice  that 
he  shall  bring  an  action  to  recover  the 
money  back.  Benson  v.  Monroe,  7  Cush. 
125  In  this  case  the  money  had  been 
paid  by  the  plaintiff  under  the  requirements 
of  a  State  statute,  which  the  State  courts 
had  decided  to  be  constitutional,  and  this 
decision,  though  it  was  afterwards  reversed 
by  tlie  Federal  courts,  was,  at  the  time  of 
the  payment,  in  full  force.  See  also 
Forbes  v.  Appleton,  5  Cush.  115  ;  Gooding 
V.  Morgan,  37  Maine,  419  ;  Boa  telle  v. 
Melendy,  19  N.  H.  196.  Where  in  a  sale 
of  an  article  subject  to  duty,  the  duty  to 
be  assessed  was  reckoned  at  five  cents  a 
pound  more  than  the  true  duty,  and  this 
excess  was  deducted  from  the  price  to  be 
paid,  the  vendor  was  permitted  to  main- 
tain an  action  therefor.  Renard  v.  Fiedler, 
8  Duer  (N.  Y.),  318.  Where  one  of  sev- 
eral debtors  pays  a  debt  after  it  is  barred 
by  tlie  statute,  he  cannot  maintain  a  suit 
against  the  others.  Wheatfield  v.  Brush 
Valley,  25  Penn.  State  R.  112.  Money 
voluntarily  paid  with  full  knowledge  of 
the  facts  cannot  be  recovered  back ;  but 
havini,'-  the  means  of  ascertaining  the  real 
facts,  is  not  the  same  as  actual  knowledge 
of  them.  Rutherford  v.  Melvor,  21  Ala. 
570.]  f  *  See  Townsend  v.  Crowdy,  8  C.  B. 


J  06  LAW   OP  EVIDENCE.  [PART  IV. 

and  lie  made  the  repairs,  but  B  refused  to  grant  the  lease  ;  it 
was  held,  that  A  could  not  recover  in  assumpsit  for  the  value 
expended  in  repairs,  because  it  did  not  appear  that  the  agreement 
was  mutually  rescinded,^ 

§  125.  In  regard  to  money  received  hy  an  agent,  the  general  rule 
is,  that  the  action  to  recall  it  must  be  brought  against  the  principal 
only,  since,  in  legal  contemplation,  the  receipt  was  by  the  princi- 
pal, with  whom  the  agent  was  identified.  But  the  count  for  money 
had  and  received,  against  the  agent  alone,  may  be  supported  by 
proof  that  the  principal  was  a  foreigner,  resident  abroad  ;  or,  that 
the  agent  acted  in  his  own  name,  without  disclosing  his  principal ; 
or,  that  the  money  was  obtained  by  the  agent  through  his  own  bad 
faith,  or  wrong,  whether  alone,  or  jointly  with  the  principal ;  or, 
that,  at  the  time  of  paying  the  money  into  his  hands,  or,  at  all 
events,  before  he  had  paid  it  over,  or  had  otherwise  materially 
changed  his  situation  or  relations  to  the  principal,  in  consequence 
of  the  receipt  of  the  money,  as  by  giving  a  new  credit  to  him,  or  the 
like,  he  had  notice  not  to  pay  it  over  to  the  principal.^  But  though 
he  has  not  paid  over  the  money,  yet,  if  he  is  a  mere  collector  or 
receiver,  the  right  of  the  principal  cannot  be  tried  in  this  form 
of  action. 3 

§  126.  In  support  of  the  count  upon  an  account  stated,  the  plain 
tiff  must  show  that  there  was  a  demand  on  his  side,  which  was 
acceded  to  by  the  defendant.  There  must  be  a  fixed  and  certain 
sum,  admitted  to  be  due;*  but  the  sum  need  not  be  precisely 
proved  as   laid   in   the  declaration.^     The  admission  must  have 

1  Hopkins  v.  Richardson,  14  Law -J.  N.  S.  maintained.     Murray  v.  McHugh,  9  Cush. 

80,  Q.  B.     [The  plaintiff  and  the  defend-  158  ] 

ant  were  members  of  a  vohintary   unin-  ^  Story  on   Agency,  §§  266,  267,  268, 

corporated  association  for  raising  money  300,  301  ;    Paley   on  Agency,    by   Lloyd, 

for   a   particular   purpose.     The"  plaintiff  pp.  388  -  394  ;  3  Chitty  on  Com.  &  Manuf. 

with  others  contributed  moneys   for   this  213. 

purpose,  which  were  handed  to  the  chair-  ^  Ibid.  ;  Sadler  v.  Evans,  4  Burr.  1984; 
man  of  the  association  in  the  first  instance,  Allen  v.  McKeen,  1  Sumn.  277,  278,  317. 
and  by  him  to  the  defendant  who  placed  *  Porter  v.  Cooper,  4  Tyrwh.  4,56,  464, 
them  with  its  general  funds.  'l"he  final  46.5  ;  1  C.  M.  &  R.  387,  S.  C. ;  Knowlea 
application  of  the  contributions  was  to  be  v.  Michel,  13  East,  249  ;  Arthur  v.  Dartch, 
made  by  a  director  chosen  by  the  associa-  9  Jur.  118;  Perry  v.  Slade,  10  Jur.  31; 
tion  ;  but  a  temporary  investment  of  the  Moseley  ;;.  Reade,  Id.  18.  An  I  O  U  is 
funds  was  made  by  the  defendant  in  pur-  evidence  of  an  account  stated  between  the 
suance  of  a  m.ajority  vote  of  the  committee,  holder  and  the  party  signing  it.  Fessen- 
The  object  of  the  association  failed,  no  mayer  w.  Adcock,  16  M.  &  W.  449.  If  the 
money  was  applied  for  that  purpose,"  and  defendant  has  admitted  a  general  balance, 
there  were  incidental  charges  and  expenses  the  plaintiff  may  recover,  without  going 
and  some  losses  on  the  investments.  The  into  the  particulars  of  the  account.  Greg- 
plaintiff  brought  an  action  of  money  had  ory  v.  Bailey,  4  Ilarringt.  256. 
and  received  to  recover  of  the  defendant  *>  Bull.  N.  P.  129.  Proof  of  one  item 
tbe  amount  of  his  contribution,  and  it  only,  will  suj)port  the  count.  Hi;j,hmore 
was   held   that   the  action   could   not  bo  v.  Primrose,  5  M.  &  S.  65.  67  ;  Knowlea 


PART  IV.]  ASSUMPSIT.  107 

reference  to  past  transactions,  that  is,  to  a  subsisting  debt,  or 
to  a  moral  obligation,  founded  on  an  extinguished  legal  obligation, 
to  pay  a  certain  sum ;  ^  but  if  the  amount  is  not  expressed,  but 
only  alluded  to  by  the  defendant,  it  may  be  shown,  by  other  evi- 
dence, that  the  sum  referred  to  was  of  a  certain  and  agreed 
amount.^  The  admission  may  be  shown  to  have  been  made  to  the 
plaintiff's  wife,  or  other  agent,^  but  an  admission  in  conversation 
with  a  third  person,  not  the  plaintiff's  agent,  is  not  sufficient.* 
The  admission  itself  must  be  voluntary,  and  not  made  upon  com- 
pulsion ;  ^  and  it  must  be  absolute,  and  not  qualified.^  But  it 
need  not  be  express  and  in  terms ;  for  if  the  account  be  sent 
to  the  debtor,  in  a  letter,  which  is  received  but  not  replied  to 
in  a  reasonable  time,  the  acquiescence  of  the  party  is  taken 
as  an  admission  that  the  account  is  truly  stated.'^  So,  if  one 
item  only  is  objected  to,  it  is  an  admission  of  the  rest.^  So,  if 
a  third  person  is  employed  by  both  parties  to  examine  the  ac- 
counts in  their  presence,  and  he  strikes  a  balance  against  one, 
which,  though  done  without  authority,  is  not  objected  to,  it  is 
sufficient  proof  of  an  account  stated.^  So,  if  accounts  are  sub- 
mitted to  arbitration,  hy  pai'ol,  the  award  is  sufficient  proof  of 
this  count.i^ 

§  127.  The  original  form,  or  evidence  of  the  debt,  is  of  no  im- 
portance, under  the  count  upon  an  account  stated ;  for  the  stating 
of  the  account  alters  the  nature  of  the  debt,  and  is  in  the  nature 
of  a  new  promise  or  undertaking.^^  Therefore,  if  the  original  con- 
tract were  void,  by  the  Statute  of  Frauds,  or  the  Stamp  Act,  or^^ 

V.  Michel,  13  East,  249  :  Pinchon  v.  Chil-  tration  bonds,  and  the  parties  must  be  pre- 

cott,  3  C.  &  P.  236.  sumed  to  have  intended,  to  do  something, 

1  Clarke  v.  Webb,  4  Tynvh.  673 ;  1  C.  the  arbitrator  might  well  be  regarded  aa 
M.  &  R.  29,  S.  C. ;  Tucker  v.  Barrow,  7  their   agent,  examining   and   stating   the 

B.  &  C.  623 ;  3  C.  &P.  85,  S.  C. ;  White-  accounts  in  their  presence.  Beyond  this, 
head  v.  Howard,  2  B.  &  B.  372 ;  Seagoe  v.  its  authority  was  denied  in  the  recent  case 
Dean,  3  C.  &  P.  170.  An  I  0  U  is  admis-  of  Bates  v.  Townley,  12  Jur.  €06,  in  which 
sible.     Payne  v.  Jenkins,  4  C.  «fe  P.  324.  it  was  held,  that  an  award,  made  under  a 

2  Dixon  V.  Devcrage,  2  C.  &  P.  109.  regular  submission  in  writing,  was  no  evi- 
^  Styart  v.  Rowland,  1  Show.  215  ;  Bull,  dence  of  an  account  stated  by  either  of  the 

N.  P.  129  ;  Baynham  v.  Holt,  8  Jur.  963.  parties. 

*  Breckon  v.  Smith,  1  Ad.  &  El.  488.  "  Anon.,  1  Ventr.  268;  Foster  v.  Allan- 
6  Tucker  v.  Barrow,  7  B.  &  C.  623 ;  3  son,  2  T.  R.  479,  482.  per  Ashhurst,  J. ; 

C.  &  P.  85,  S.  C.  Ibid.  483,  per  Buller,  J. ;  Holmes  v. 
6  Evans  V.  Verity,  Ry.  &  M.  239.  D'Camp,  1  Johns.  36,  per  Spencer,  J. 
■^  Ante,  Vol.  1,  §  197.  Therefore   an  account  stated  with  a  new 

*  Chisman  v.  Count,  2  M.  &  Gr.  307.         firm  may  sometimes  include  debts  due  to 
^  1  Steph.  N.  P.  361.  a  former  firm,  or  to  one  of  the  partners. 

i*^  Keen  v.  Batshore,  1  Esp.  194.     This  David  i'.  Ellice,  5  B.  &  C.  196.     And  see 

case   of  Keen  v.  Batshore  is  said  by  Pol-  Gough  v.  Da^nes,  4  Price,  200 ;  Moor  v. 

lock,  C.  B.,  to  have  been  decided  chiefly  Hill,  Peake's  Add.  Cas.  10. 

on  the  ground  that,  as  there  were  no  arbi-  ^  Seagoe  v.  Dean,  3  C.  &  P.  170;  4 


108  LAW   OF  EVIDENCE.  [PART  l\ 

if  the  items  of  the  account  were  rents  secured  by  specialty, 
yet  if,  after  the  agreement  is  executed,  there  be  an  actual  accoum 
ing  and  a  promise  express  or  implied  to  pay,  it  is  sufficieni 
It  is  not  necessary  to  prove  the  iteins  of  the  account ;  for  th 
action  is  founded,  not  upon  these,  but  upon  the  defendant's  cor 
sent  to  the  balance  ascertained.^  And  it  is  sufficient  if  th 
account  be  stated  of  what  is  due  to  the  plaintiff  alone,  withou 
deduction  for  any  counter  claim  of  the  defendant.^  But  a  haiiker' 
pasS'booJc  delivered  to  his  customer,  in  which  there  are  entrie 
on  one  side  only,  is  not  evidence  of  an  account  stated  betweei 
them,  though  the  customer  keeps  the  book  in  his  custody,  withou 
making  any  objection  to  the  entries  contained  in  it.* 

§  128.  It  is  not  material  ivhen  the  admission  was  made,  whethe 
before  or  after  action  brought,  if  it  be  proved  that  a  deb 
existed  before  suit,  to  which  the  conversation  related.^  Bu 
whensoever  such  admission  was  made,  it  is  not  now  held  to  b 
conclusive  ;  but  any  errors  may  be  shown  and  corrected  under  th 
general  issue.^  If  the  defendants  were  formerly  partners,  and  th 
admission  was  by  one  of  them  alone,  in  regard  to  things  whic] 
were  done  before  the  dissolution  of  the  firm,  it  seems  to  b 
considered  sufficient.'^     And  where  A  admitted  to  an  agent  o: 

B,  that  a  balance  was  due  from  himself  in  respect  to  a  bill  ol 
exchange,  of  which  B  was  then,  but  unknown  to  A,  the  holder 
and  afterwards  A,  having  been  informed  that  B  held  the  bill 
told  the  agent  that  he  could  not  pay  it ;  these  two  admissions 
taken  together,  were  held  evidence  of  an  account  stated.^  Bu 
the  admission,  however  made,  in  order  to  constitute  an  accoun 
stated,  must  have  been  made  to  the  opposite  party  or  his  aigent. 

§  129.  If  the  plaintiff  claims  the  money  in  a  particular  character 
or  capacity,  it  will  not  be  necessary  for  him  to  prove  that  charac 

Bing.  459,  S.  C. ;  Pinchon  &  Ghilcott,  3  ^  Styart  v.  Rowland,  1  Show.  215. 

C.  &  P.  236  ;  Teal  v.  Auty,  2  B.  &  B.  99 ;  *  Ex  parte  Randlcson,  3  Dcac.  &  Chitty 
Knowles  v.  Michel,  13  East,  249  ;  Cocking  534.  And  see  Taibuck  v.  Bipshara,  2  M 
i;.  Ward,  1  M.  G.  &  Sc.  858.  &  W.  2. 

1  Davison  v.  Hanslop,  T.  Raym.  211  ;  ^  Allen  v.  Cook,  2  Dowl.  P.  C.  546. 

Moravia  v.  Lew,  2  T.  R.  483,  n. ;   Dan-  «  Thomas  v.  Hawkes,  8  M.  &  W.  140 

forth  y.  SchohaVie,  12  Johns.  227  ;  Foster  Perkins   v.   Hart,    11    Wheat.    237,   256 

V.   Alhinson,    2    T.   R.    479;    Arthur   v.  Holmes   v.   D'Camp,  1    Johns.  36.     For 

Dartcli,   9   Jur.    118.     But   this   doctrine  merly    it  was    otherwise.      Trueman    v 

was  questioned   in  Gilson  v.  Stewart,    7  Hurst,  1    T.  R.  40.     See  further,  Harder 

Watts,  100,  and  its  application  restricted  v.  Gordon,  2  Mason,  541,  561. 

to  cases,  where  the  account  included  otlier  ''  A)ite,  Vol.  1,  §  112,  and  note, 

matters  also,  not  arising  by  the  specialty.  ^  Baynham  v.  Holt,  8  Jur.  963. 

-  Bartlctt  V.   Emery,  1   T.   R.  42,  n. ;  »  Bates   v.  Townley,  2  Exch.  R.  152 

Bull.  N.  P.  129.  12  Jur.  606. 


PART  IV.]  ASSUMPSIT.  109 

ter,  under  tlie  count  upon  an  account  stated  ;  for  the  defendant, 
by  accounting  with  him  in  that  character,  without  objection,  has 
admitted  it.^ 

§  129  a.  Under  either  of  the  money  counts,  where  the  plaintiflF 
proves  the  payment  or  receipt  of  money,  in  coins  or  bank-notes, 
without  showing  of  what  denomination,  the  jury  will  be  directed 
to  presume  the  coins  or  notes  to  have  been  of  the  smallest  denomi- 
nation in  circulation.  Thus,  where  the  delivery  of  a  bank-note 
was  proved,  the  amount  of  which  did  not  appear,  it  was  held  that 
the  jury  were  rightly  directed  to  presume  it  a  £5  note,  that 
being  the  lowest  denomination  issued.^ 

§  130.  The  defendant'' s  ansiver,  in  an  action  of  assumpsit,  is 
either  by  a  plea  in  abatement,  or  by  the  general  issue,  or  by 
a  special  plea  in  bar.  In  abatement  of  the  suit,  the  more  usual 
pleas  are  those  of  misnomer,^  coverture,  and  the  omission  to  sue  a 
joint  contractor.  Under  the  liberality  with  which  amendments 
are  permitted,  the  plea  of  misnomer  is  now  rarely  tried.  The  plea 
of  coverture  is  sustained  by  evidence  of  general  reputation  and 
acknowledgment  of  the  parties  and  reception  of  their  friends,  as 
man  and  wife,  and  of  cohabitation  as  such.*  If  coverture  of  the 
plaintiff  is  pleaded,  it  seems  that  proof  of  a  solemn  and  unquali- 
fied admission  by  her,  that  she  was  married,  will  be  sufficient  to 
support  the  plea ;  but  that  if  the  admission  is  coupled  with  the 
expression  of  doubts  as  to  the  validity  of  the  marriage,  it  will  not 
be  sufficient.^ 

§  131.  If  the  defendant  pleads  in  abatement,  that  he  made  the 
contract  jointly  with  other  persons,  named  in  the  plea,  but  not 
joined  in  the  suit,  the  naming  of  these  persons  is  taken  as  exclu 
sive  of  any  others  ;  and  therefore  if  it  is  shown,  that  there  were 
more  joint  contractors,  this  will  disprove  the  plea.^  If  to  a 
declaration  for  work  and  labor,  or  upon  several  contracts,  the 
defendant  pleads  in  abatement  the  non-joinder  of  other  contracts, 
it  must  be  proved,  that  all  the  contracts  were  made  by,  or  that 
all  the  work  was  done  for,  the  persons  named  in  the  plea,  and 
none  others  ;  for,  if  it  should  appear  that  one  contract  was  made 

1  Peacock  v.  Harris,  10  East,  104;  ante,  v.  Barlow,  1  Doug.  171.  See  infra,  tit. 
Vol.  1,  §  195.  Marriage. 

2  Lawton  v.  Sweeney,  8  Jnr.  964.  And  °  Mace  v.  Cadell,  Cowp.  233  ;  "Wilson  v. 
see  also  Dry  Dock  Co.  v.  Mcintosh,  2  Hill  Mitchell,  3  Campb.  393. 

(N.  Y.)R.  290.  6  Godson  v.    Good,   6  Taunt.    587;    2 

*  See  supra,  tit.  Abatement,  §  21.  Marsh.    299,    S.    C. ;  Ela  v.  Kand,  4  N. 

*  Leader  v.  Barry,  1  Esp.  153;  Kay  y.  Hamp.  307. 
I>uchesse  de  Pienne,  3  Campb.  123 ;  Birt 


110  LAW   OF   EVIDENCE.  [PART  IV 

by,  or  one  portion  of  the  work  was  done  for,  the  defendant  alone 
the  plaintiff  will  have  judgment  for  the  whole,  though  as  to  th( 
residue  of  the  declaration  the  plea  is  supported  ;  for  not  beinj 
supported  as  to  the  whole  declaration  to  which  it  is  pleaded 
it  is  no  answer  at  all.  Therefore,  where,  to  account  for  worl 
done,  the  defendants  pleaded  that  it  was  done  for  them  and  cer 
tain  others,  and  the  plaintiff  proved  that  it  was  done  parth 
for  them,  and  the  residue  for  them  and  the  others,  he  had  judg 
ment  for  the  whole,  the  plea  not  being  supported  to  the  exten 
pleaded.^  But  where  the  suit  was  against  A,  B,  and  0,  for  worl 
done  for  them,  and  the  defendants  pleaded  the  non-joinder  of  D,  anc 
it  appeared  that  one  portion  of  the  work  was  done  for  A  alone 
another  portion  for  A,  B,  C,  and  D,  a  third  portion  for  A,  B,  an( 
D,  and  a  fourth  for  A  and  B,  but  none  for  A,  B,  and  C,  only ;  thi 
plea  was  held  supported,  as  an  answer  to  the  action,  the  plaintifi 
failing  to  prove  any  claim  against  the  particular  parties  sued. 
If  the  persons  not  joined  are  described  in  the  plea  as  assignee 
of  a  bankrupt  contractor,  the  assignment  itself  must  be  proved 
unless  the  fact  has  been  admitted  by  the  other  party  ;  proof  oi 
their  having  acted  as  such  not  being  deemed  sufficient.^  And  ii 
the  trial  of  this  issue  of  the  want  of  proper  parties  defendant,  thi 
contracting  party  not  sued,  though  ordinarily  incompetent  as  i 
witness  for  the  defendant,  by  reason  of  his  interest,  may  bi 
rendered  competent  by  a  release.* 

§  132.  This  plea,  to  a  count  for  goods  sold,  may  be  supportec 
by  proof  that  they  were  ordered  by  the  defendant  jointly  with  thi 
other  person  named ;  or,  that  such  had  been  the  previous  an( 
usual  course  of  dealing  between  the  parties ;  or,  that  partial  pay 
ments  had  been  made  on  their  joint  account. 

§  133.  If  one  of  two  joint  contractors  is  dead,  and  the  sur 
vivor  is  sued,  as  the  solo  and  several  contractor,  it  will  no 
be  sufficient  for  the  plaintiff,  in  answer  to  a  plea  of  non-joinder 
to  reply  the  fact  of  his  death,  for  this  would  contradict  his  dcclara 
tion  upon  a  separate  contract,  by  admitting  a  joint  one.^     In  al 

1  Hill  V.  White  &  Williams,  6  Binff.  N.  proves  a  contract  by  all.  Robeson  v 
C.  26  ;  8  Scott,  249,  S.  C. ;  8  Dowl.  P.  C.  Ganderton,  9  C.  &  P.  476  ;  Elliott  v.  Mor 
13,  S.  C. ;  3  Jur.  1078.     In  this  case,  the     gan,  7  C.  &  P.  334. 

case  of  Colson  v.  Sclby,  1  Esp.  452,  was  ^  Pasmore    v.   Bousfield,    1    Stark.   R 

overruled.  296.     See   further  as  to  this   pica,  supra 

2  mil  V.  White,  Williams  &  Boulter,  6  tit.  AnATE:MENT,  §§  24,  2.'3. 
Bing.    N.   C,   23;  8   Scott,  245,  S.  C. ;  8  *  Ante,  Vol.  1,  §§395,426,427 
Dowl.  P.  C.  6.1,  S.  C.  ;  3  Jur.  1077.     If  6  jjovill  v.  Wood,  2  M.  &  S.  25,  per  U 
some  confess  the  action  by  default,  yet  the  Blano,  J. 

DlaiutifF  cannot  have  judgment  unless  he 


PART  IV.]  ASSUifPSIT.  Ill 

actions  upon  contract,  the  defendant  has  a  right  to  require  that 
his  co-debtor  should  be  joined  with  hina  ;  and  the  plaintiff  cannot 
so  shape  his  case  as  to  strip  him  of  that  right,  or  of  the  benefit, 
whatever  it  may  be,  of  having  his  discharge  stated  on  the  record. 
The  plaintiff  is  not  at  liberty,  in  the  first  instance,  to  anticipate 
what  may  ultimately  perhaps  be  a  discharge.  The  practice  has 
ever  been  to  join  all  the  contracting  parties  on  the  record ; 
thus  giving  to  the  party  who  is  joined  notice  at  the  time,  and 
enabling  him  at  any  future  time  to  plead  the  judgment  recovered 
on  the  joint  debt,  without  the  help  of  averments ;  and  likewise 
advancing  him  one  step  in  the  proof  necessary  in  an  action 
for  contribution.  Such  was  the  judgment  of  Lord  Ellenborough, 
in  a  case  in  which  it  was  held,  that,  though  one  of  the  joint 
contractors  had  become  bankrupt  and  obtained  his  discharge,  a 
replication  of  this  fact  was  no  answer  to  a  plea  of  non-joinder  in 
abatement ;  for  though  he  was  discharged  by  law,  he  was  not 
bound  to  take  the  benefit  of  it.^  If  he  pleads  the  discharge,  the 
plaintiff  may  enter  a  nolle  prosequi  as  to  him,  and  proceed  against 
the  other.2  It  has  been  held  in  England,  that  this  course  was 
proper  only  ia  cases  of  bankruptcy ;  and  that  a  replication  of 
infancy  or  coverture  of  the  person  not  sued  was  a  good  answer  to 
a  plea  of  non-joinder  ;  for  that  the  plaintiff  could  not,  in  such  case, 
enter  a  nolle  prosequi  as  to  one  joint  contractor,  without  discharg- 
ing all,  and,  therefore,  that  he  had  no  remedy  but  in  this  mode.^ 
But  in  the  American  courts,  the  entry  of  a  nolle  prosequi,  and  its 
effect,  have  been  regarded  as  matters  of  practice,  resting  in  the 
discretion  of  the  court ;  and  accordingly,  wherever  one  defendant 
pleads  a  plea  which  goes  merely  to  his  personal  discharge,  the 
contract,  as  to  him,  being  only  voidable,  and  not  utterly  void,  the 
plaintiff  has  been  permitted  to  enter  a  nolle  prosequi  as  to  him  and 
proceed  against  the  others.'*  It  would  seem,  therefore,  that  in  the 
American  courts  the  replication  of  infancy,  or  other  personal  im- 
munity of  the  party  not  joined,  would  not  be  a  good  answer  to 
a  plea  of  non-joinder  in  abatement,  unless  such  party  had  already 
made  his  election  and  avoided  the  contract.^ 

1  BoviU  V.  Wood,  2  M.  &  S.  23  ;  2  Rose,         *  Woodward  v.  Newhall,  1    Pick.  500; 
l55;Hawkins».  Ramsbottoin,6  Taunt.  179.     Hartness    v.   Thompson,   5    Johns.    160, 

2  Noke  V.  Ingham,  1  Wils.  89.  Minor  v.  Mechanics'  Bank,  1  Peters,  R. 
8  Chandler  v.  Parks,  3  Esp.  76  ;  Jaffray     46 ;  Salmon  i'.  Smith,  1   Saund.  207   (2), 

r.  Frebain,  5  Esp.  47.     See  also  Burgess     by  Williams. 

V.   MerriU,   4   Taunt-  468 ;  I    Chitty   on         5  Qibbs  v.  Merrill,  3  Taunt.  313,  314, 

Plead.  49,  52.  per  Mansfield,  C.  J. 


112  LAW   OF  EVIDENCE.  [PART  IV. 

§  134.  Where  the  joint  liability  pleaded  arises  from  partnersJiip 
with  the  defendant,  it  must  be  proved  to  have  openly  existed,  not 
only  at  the  time  of  making  the  contract,  but  in  the  same  business 
to  which  the  contract  related.  The  partnership  may  be  proved  by 
evidence  of  any  of  the  outward  acts  and  circumstances,  which  usu- 
ally belong  to  that  relation,  brought  home  to  the  knowledge  of  the 
plaintiff.  But  if  the  partnership  is  dormant,  and  unknown  to  the 
plaintiff,  or  if  it  is  known,  but  the  omitted  party  is  a  secret  part- 
ner, this,  as  we  have  heretofore  seen,  is  no  objection  to  the  suit.^ 

§  135.  Almost  all  the  defences  to  the  action  of  assumpsit,  in  the 
United  States,  and,  until  a  late  period,  in  England,  have  been 
made  under  the  general  issue.  This  plea,  on  strict  principle, 
operates  only  as  a  denial  in  fact  of  the  express  contract  or  prom- 
ise, where  one  is  alleged,  or  of  the  matters  of  fact  from  which  the 
contract  or  promise  alleged  may  be  implied  by  law.  But  by  an 
early  relaxation  of  the  principle,  the  defendant,  in  actions  on  express 
contracts,  was  admitted,  under  the  general  issue,  to  the  same  latitude 
of  defence,  which  was  open  to  him  in  actions  upon  the  common 
counts,  and  was  permitted  to  adduce  evidence  showing  that,  on  any 
ground  common  to  both  kinds  of  assumpsit,  he  was  under  no  legal 
liability  to  the  plaintiff  for  that  cause,  at  the  time  of  pleading.^ 
The  practice  in  the  English  courts,  by  the  recent  rules,  has  been 
brought  back  to  its  original  strictness  and  consistency  with  princi- 
ple. In  the  United  States,  it  remains,  for  the  most  part,  in  its 
former  relaxed  state  ;  and  accordingly  where  it  has  not  been  other- 
wise regulated  by  statutes,  the  defendant,  under  this  issue,  may 
give  in  evidence  any  matters,  showing  that  the  plaintiff  wever  Aac? 
any  cause  of  action  ;  such  as,  the  non-joinder  of  another  promisee  ; 
the  defendant's  infancy ;  lunacy ;  drunkenness,  or  other  mental 
incapacity  ;  or  coverture  at  the  time  of  contracting ;  duress  ;  want 
of  consideration  ;  illegality  ;  release  or  parol  discharge  or  payment 
before  breach  ;  material  alteration  of  the  written  contract ;  that 
the  plaintiff  was  an  alien  enemy  at  the  time  of  contracting  ;  or 
that  tb.o  contract  was  void  by  statute,  or  by  the  policy  of  tlie  law ; 
non-performance  of  condition  precedent,  by  the  plaintiff;  or  that 
performance  on  his  own  part  was  prevented  by  the  plaintiff,  or 
by  law,  or,  in  certain  cases,  by  the  act  of  God  ;  or  any  the  like 
matters  of  defence.^     He  may  also  give  in  evidence  many  matters  in 

1  Supra,  tit.  Abatement,  §  25  ;  Story        2  Stephen  on  Pleading,  p.  179-  182. 
on  rartnersbip,  §   241;  Collycr  on  Part-         »  i  Chitty  on  Plead.  417-420;  Gould 
ncrship,  pp.  424,  425.  on  Plead,  ch.  6,  §  46  -  50  ;  Young  v.  Black, 


PART  IV.J  ASSUMPSIT.  113 

discharge  of  his  liability  to  the  plaintiff,  such  as,  bankruptcy  of 
the  plaintiff,  where  this  would  defeat  the  action  ;  coverture  of  the 
plaintiff,  where  she  sues  alone,  and  has  no  interest  in  the  con- 
tract ;  payment ;  accord  and  satisfaction  ;  former  recovery ;  higher 
security  given  ;  discharge  by  a  new  contract ;  release ;  and  tho 
like.^  So,  in  assumpsit  for  use  and  occupation,  the  defendant  un 
der  this  issue  may  show  that  he  has  been  evicted  by  one  who 
had  recovered  judgment  against  his  lessor,  by  virtue  of  a  para- 
mount title,  to  whom  he  has  attorned  and  paid  the  rent  subse- 
quently accruing.2  Yet  there  are  some  matters  in  discharge,  which 
admit  the  debt,  but  go  in  denial  of  the  remedy  only,  that  must  he 
pleaded;  namely,  bankruptcy  or  insolvency  of  the  defendant; 
tender;  set-off;  and  the  statute  of  limitations.^  It  is  only  where 
the  special  plea  amounts  to  the  general  issue,  that  is,  where 
it  alleges  matter,  which  is  in  effect  a  denial  of  the  truth  of 
the  declaration,  that  such  plea  is  improper  and  inadmissible.^ 

These  defences  being  for  the  most  part  applicable  to  other 
actions  on  contracts,  will  be  treated  under  their  appropriate 
titles. 

§  136.  In  regard  to  the  admissibility  of  evidence  of  failure,  or> 
want  of  consideration,  as  a  defence  to  an  action  of  assumpsit,  there 
is  an  embarrassing  conflict  in  the  decisions.  A  distinction,  how- 
ever, has  been  taken  between  those  cases  where  the  consideration 
was  the  conveyance  of  real  property,  and  those  where  it  was 
wholly  of  a  personal  nature,  such  as  goods  or  services ;  and  also 
between  a  total  and  a  partial  failure  of  the  consideration.     Where 

7  Cranch,  565;  Craig  v.  Missouri,  4  Pet.  sustain  assumpsit  for  use  and  occupatiou, 

426  ;  Wilt  V.  Ogden,  13  Johns.  56 ;  Wail-  the  relation  of  landlord  and  tenant  must 

ingv.  Toll,  9  Johns.  141;  Hilton  v.  Bur-  have  existed  between  the  parties,  evidenced 

ley,  2   N.   Harap.    193  ;  Sill  v.  Rood,  15  either  by  an  express  or  implied  contract. 

Johns.  230  ;  Mitchell  v.  Kingman,  5  Pick.  Where  one  enters  upon  the  land  of  another 

431  ;  Osgood  V.  Spencer,  2  H.  &  G.  133.  under  an  agreement  of  purchase  which  he 

Where  the  plaintiff  sues   upon  a  qitnntnm  subsequently  foils  to  carry  out,  the  relation 

meruit,  and  tho  defendant  has  lost  the  op-  is  not  sustained.     Stacy  v.  Vt.  Cera.  R.  R. 

portunity  of  making  a  set-off,  by  not  com-  32  Vt.  .551 ;  Hough  v.  Birge,  11  Vt.  190. 

plying  with  the  rule  requiring  him  to  file  But  where  the  holding  possession  of  the 

a  bill  of  particulars,  he  may  still  show  that  premises  is  by  permission   of  the  owner, 

the   plaintiff's  demand   was   compensated  an  undertaking  on  the  part  of  the  tenant 

at  the  time,  by  services  rendered,  and  that  to  pay  rent  may  be  implied  from  slight  cir- 

therefore  no  liability  of  the  defendant  ever  cumstances.     Watson  v.  Brainard,  33  Vt 

arose.  Green «.  Brown, 3 Barb.  S.  C.R.I  19.  88.     And  the  plaintiff  being  the  owner  of 

1  1  Chitty  on  Plead.  417-420;  Gould  the  premises,  the  mere  fact  of  occupancy  by 
on  Plead,  c.  6,  §  46  -  50  ;  Edson  v.  Wes-  the  defendant  would  be,  prima  facie,  suffi- 
ton,  7  Cow.  278;  Drake  v.  Drake,  11  cicnt  to  create  a  presumption  of  such  rela- 
Johns.  531  ;   Dawson  v.  Tibbs,  4  Yeates,  tion.     Keyes  v.  Hill,  30  Vt.  759.] 

349  ;    Young  v.   Black,    7    Cranch,    565  ;  ^  i    Chitty  on   Plead.   420 ;  Gould   on 

Offut  V.  Offut,  2  H.  &  G.   178 ;  Wright  v.  Plead,  ch.  6,  §  51. 

Butler,  6  Wend.  284.  *  Gould  on  Plead,  ch.  6,  §  78  ;  Steph 

2  Newport  v.  Hardv,  10  Jur.  333.    [*To  on  Plead.  412. 
VOL.  II.                                            8 


114 


LAW   OF   EVIDENCE. 


[part  IV. 


the  consideration  is  personal  in  its  nature,  and  ihQ  failure  is  total, 
or  the  defendant  has  derived  no  benefit  at  all  from  the  services 
performed,  or  none  beyond  the  amount  of  money  which  he  has 
already  advanced,  it  seems  agreed,  that  this  may  be  shown  in  bar 
of  the  action.^  If,  in  an  express  contract  for  a  stipulated  price, 
the  failure  of  a  similar  consideration  is  partial  only,  the  defendant 
having  derived  some  benefit  from  the  consideration,  whether  goods 
or  services,  and  the  count  is  special,  upon  the  express  contract,  the 
English  rule  seems  to  be,  not  to  admit  it  to  be  shown  in  bar  ])ro 
tanto,  but  to  leave  the  defendant  to  his  remedy  by  action  ;^  unless 
the  quantum  to  be  deducted  is  matter  susceptible  of  definite  com- 
putation.^ But  where  the  plaintiff  proceeds  upon  general  counts, 
the  value  of  the  goods  or  services  may  be  appreciated  by  evidence 
for  the  defendant.*     The  American  courts,  to  avoid  circuity  of 


1  Jackson  v.  Warwick,  7  T.  R.  121  ; 
Templer  v.  McLachlan,  2  New  R.  136,  139  ; 
Farnsworth  v.  Garrard,  1  Campb.  88 ; 
Dax  V.  Ward,  1  Stark.  R.  409  ;  Morgan 
V.  Richardson,  1  Campb.  40,  n. ;  9  Moore, 
159  ;  Tye  v.  Gwinne,  2  Campb.  346. 

2  Templer  v.  McLachlan,  2  New  R.  136  ; 
Franklin  v.  Miller,  4  Ad.  &  El.  599 ; 
Grimaldi  v.  White,  4  Esp.  95  ;  Denew  v. 
Daverell,  3  Campb.  451 ;  Basten  v.  Butter, 
7  East,  483,  per  Ld.  Ellenborough ;  Sheels 
V.  Davies,  4  Campb.  119;  Crowninshield 
V.  Robinson,  1  Mason,  93,  ace.  But  see 
contra,  Okell  v.  Smith,  1  Stark.  R.  107  ; 
Chapel  V.  Hickes,  2  Cr.  &  M.  214 ;  4 
Tyrwh.  43 ;  Cutler  v.  Close,  5  C.  &  P. 
337. 

3  Day  V.  Nix,  9  Moore,  1 59.  See  also 
Parish  v.  Stone,  14  Pick.  198,  210. 

*  Denew  v.  Daverell,  3  Campb.  451  ; 
Basten  v.  Butter,  7  East,  479  ;  Farnsworth 
V.  Garrard,  1  Campb.  38  ;  Fisher  v.  Samu- 
da.  Id.  190;  Kist  v.  Atkinson,  2  Campb. 
63  ;  Bilbie  v.  Lumley,  2  East,  469 ;  1 
Mason,  95,  per  Story,  J.,  ace. ;  Miller  v. 
Smith,  Id.  437  ;  2  Smith's  Leading  Cases, 
pp.  14,  15.  In  the  second  American  edi- 
tion of  the  last-cited  work,  the  doctrine 
recognized  in  this  country,  which  seems 
to  accord  in  its  main  ])rinciples  with  that 
of  Westminster  Hall,  is  well  stated  in  the 
notes  of  .Mr.  Wallace,  as  follows  :  "  Where 
there  has  been  a  special  contract,  and  the 
plaintiff's  duty  has  been  executed  and 
closed,  he  may  either  declare  specially  on 
the  contract,  or  maintain  general  assumpsit. 
It  is  important  to  observe  the  different 
ground  on  which  these  two  actions  rest, 
and  the  difference  in  the  proceedings  to 
which  they  give  rise.  The  special  assump- 
tit  is  brought  upon  the  express  contract. 
Unle*is  the  plaintiff"  can  show  that  he  has 


fulfilled  with  legal  exactness  all  the  terms 
of  the  contract,  he  can  recover  nothing. 
See  Morford  v.  Mastin  &  Ambrose,  6  I\lon- 
roe,  609 ;  and  compare  with  it  S.  C.  in  3 
J.  J.  Marshall,  89  ;  Taft  v.  The  Inhabit- 
ants of  Montague,  14  Mass.  282  ;  Gregory 
V.  Mack,  3  Hill  (N.  Y.)  380.  But  if  his 
performance  las  been  according  to  the 
terms  of  the  contract,  and  has  resulted  in 
an  .available  and  practical  work  of  the  kind 
required,  so  that  the  plaintiff  is  capable  of 
maintaining  his  special  action  at  all,  he  is 
entitled  at  common  law  to  recover  the 
whole  compensation  fixed  by  the  contract, 
and  the  defendant  must  resort  to  a  cross- 
action,  to  recover  damages  for  faults  in 
the  manner  of  performance,  or  for  breaches 
of  a  warranty.  See  Everett  v.  Gray  et  al., 
1  Mass.  101,  where  there  was  a  special 
count.  It  is  true  that  in  such  case,  a  re- 
covery may  be  defeated  by  proof  of  fraud, 
for  fraud  vitiates  every  sale ;  but  upon  a 
contract  of  sale,  where  performance  has 
been  accepted,  the  defendant  cannot  set  up 
this  defence,  unless  he  has  returned  the 
article  or  given  notice  as  soon  as  the  vari- 
ance is  discovered,  for  thereby  he  rescinds 
his  acceptance  of  the  performance  ;  if  he 
does  not  he  cannot  set  up  this  defence,  for 
tlie  ]5laintiff  should  have  been  allowed  an 
opportunity  to  make  other  use  of  the  arti- 
cle, and  the  defendant's  delay  and  silence 
would  be  a  counter  fraud  in  him  ;  unless 
he  can  show  that  the  plaintiff"  could  not 
possibly  have  been  injured  by  the  non-re- 
turn, which  is  only  where  the  article  is 
wholly  useless  ;  tlierefore,  on  a  sale,  a  spe 
cial  count  can  only  be  defeated  for  fraud, 
where  the  article  has  been  returned,  or  is 
proved  to  be  wholly  worthless.  Burton  v. 
Stewart,  3  Wend.  236 ;  Van  Epps  v.  Har- 
rison, 5  Hill,  64.     See  Thornton  v.  Wyno, 


PART  IV.] 


ASSUMPSIT. 


115 


action,  have  of  late  permitted  a  partial  failure  of  consideration  to 
be  shown  in  defence  pro  tanto  in  all  suits  on  contracts  respecting 
personal  property  or  services ;  ^  only  taking  care  that  the  defence 


12  Wheat.  183  ;  Case  v.  John,  10  Watts, 
107. 

"  But  if  the  plaintiff,  having  executed 
his  part  of  the  contract,  brings  general 
assumpsit,  the  ground  of  his  recovery  is  not 
the  defendant's  special  contract  or  prom- 
ise, but  he  rests  wholly  on  the  implied 
legal  liability  of  the  defendant,  to  recom- 
pense him  for  a  service  which  has  been 
done  at  the  defendant's  i-equest ;  the  de- 
fendant not  being  allowed  to  defeat  the 
plaintiff  by  setting  up  a  special  contract 
which  he  himself  has  broken,  by  not  pay- 
ing at  the  appointed  time.  The  nature 
of  the  action,  and  the  legal  ground  of  the 
recovery,  therefore,  are  precisely  the  same 
as  they  are  where  there  has  been  in  fact 
no  special  contract  at  all ;  the  rule  that 
the  plaintiff  cannot  recover  beyond  the 
rates  of  recompense  fixed  by  the  contract 
being  merely  a  rule  of  evidence,  founded 
not  only  upon  those  rates  being  necessa- 
rily the  most  reasonable  measure  of  values 
in  the  particular  case,  but  upon  the  consid- 
eration that  the  defendant's  previous  re- 
quest, or  subsequent  acceptance,  which  is 
relied  upon,  was  conditioned  upon  the 
charges  being  at  those  specified  rates.  Ac- 
cordingly it  results  necessarily  from  the 
ground  and  nature  of  the  action,  that,  when 
the  plaintiff  declares  generally,  the  defend- 
ant may  show,  in  reduction  of  damages, 
everything  that  goes  directly  to  the  con- 
sideration, and  immediately  affects  the 
value  of  the  work  ;  for  the  assumpsit  which 
the  law  implies,  whether  in  quantum  meruit, 
or  indtbitalus,  is  always  commensurate 
with  the  actual  final  value  of  the  article  or 
■work.  This  principle,  in  respect  to  inde- 
bitatus assumpsit,  is  decided  in  Heck  v. 
Shener,  4  Serg.  &  Eawle,  249,  the  dis- 
tinction being  between  those  torts  or 
breaches  of  contract  which  go  entirely  to 
the  consideration,  and  those  whicli  are  de- 
hors, and  collateral  to  it ;  the  latter  not  be- 
ing admissible.  Gogel  v.  Jacoby,  5  S.  & 
R.  117.  The  defendant,  therefore,  may 
show  defects  in  the  work  or  service,  and 
if  tlie  plaintiff  refers  to  the  contract  as  evi- 
dence of  the  fair  price  of  the  work  or  arti- 
cle, the  defendant  may  show  that  this  price 
was  predicated  upon  a  warranty  of  quality 
which  has  proved  false ;  in  short,  from  the 
very  nature  of  the  claim  which  the  plaintiff 
has  chosen  to  make,  the  defendant  may 
prevent  his  recovering  more  than  the  real, 
inherent  value  of  the  consideration.  This 
is  not  an  anomaly  or  innovation  of  the 
law ;  at  least,  the  law  has  necessarily  been 
thus  ever  since  it  has  been  settled  that  gen- 


eral assumpsit  is  maintainable  after  the 
performance  of  a  special  contract ;  it  is 
evident  from  the  cases  cited  in  Basten  v. 
Butter,  7  East,  479,  and  notes,  that  Lord 
Kenyon  had  previously  more  than  once 
ruled  the  point  difi'erently  from  Buller, 
even  if  Broom  r.  Davis,  ruled  by  the  hitter, 
was  not,  what  it  probably  was,  a  special 
count ;  and  Lord  Kenyon  was  not  very 
greatly  given  to  innovation.  The  cases 
of  Mills  and  others  v.  Bainbridge,  and 
Templer  v.  McLachlan,  in  2  New  Reports, 
136,  137,  accord  entirely  with  the  distinc- 
tion above  noted  ;  the  neglects  there  com- 
plained of  did  not  go  to  the  consideration 
of  the  assumpsits  there  declared  upon,  the 
service  for  which  the  assumpsit  was  brought 
having  been,  in  both  cases,  completely  per- 
formed ;  but  were  collateral  torts.  In  this 
country  it  may  be  considered  as  perfectly 
settled,  that  when  the  plaintiff  brings  gen- 
eral assumpsit,  when  there  has  been  a  spe- 
cial contract,  the  defendant  may  give  in 
evidence,  in  reduction  of  damages,  a  breach 
of  warranty,  or  a  fraudulent  misrepresenta- 
tion, without  a  return  of  the  article.  Mc- 
Allister V.  Reab,  4  Wend.  483,  affirmed  on 
error,  in  8  Wend.  109  ;  Still  v.  Hall,  20 
Wend.  .51 ;  Batterman  v.  Pierce,  3  Hill 
(N.  Y.)  172;  Steigleman  v.  Jeffries,  1 
Serg.  &  Rawle,  477,  &c.  In  like  manner, 
defects  in  the  work  or  article  must  be 
given  in  evidence  if  this  form  of  action  be 
brought.  Grant  v.  Button,  14  Johns.  377 ; 
King  &  Mead  v.  Paddock,  18  Johns.  141." 
See  2  Smith's  Leading  Cases,  pp.  27,  28 
{2d  Am.  ed.). 

1  22  Am.  Jur.  26  ;  2  Kent,  Comm.  473, 
474 ;  Barker  v.  Prentiss,  6  Mass.  430 ; 
Parish  v.  Stone,  14  Pick.  198  ;  Folsom  v. 
Mussey,  8  Greenl.  400 ;  Reed  v.  Prentiss, 
1  N.  Hamp.  174;  Shepherd  v.  Temple,  3 
N.  Hamp.  4,5.5 ;  Hills  v.  Banister,  8 
Cowen,  31  ;  McAllister  v.  Reab,  4  Wend. 
483 ;  Reab  v.  McAllister,  8  Wend.  109 ; 
Todd  V.  Gallagher,  16  S.  &  R.  261  ; 
Christy  v.  Reynolds,  Id.  258  ;  Evans  v. 
Gray,  12  Martin,  475,  647;  Spalding  v. 
Vandercook,  2  Wend.  431  ;  Hayward  v. 
Leonard,  7  Pick.  181  ;  Cone  v.  Baldwin, 
12  Pick.  545  ;  Pegg  v.  Stead,  9  C.  &  P. 
636.  In  ttie  case  of  Parish  v.  Stone,  above 
cited,  the  jury  found  that  a  part  of  the 
consideration  of  the  note  declared  upca 
was  for  services  rendei'cd  by  the  plaintiff 
to  the  defendant's  testator,  and  that  the 
residue  was  intended  as  a  mortuary  gift ; 
and  the  question  was,  whether  the  plain- 
tiff was  entitled  to  recover  for  that  part 
only  which  was  good  and  vahd  in  law. 


116 


LAW   OF   E\nDF,!>;CE. 


[part  IV. 


fihall  not  take  the  plaintiflf  by  surprise, ^     But  where  the  consider- 
ation consists  of  real  estate,  conveyed  by  deed,  with  covenants  of 


In  delivering  the  judgment  of  the  court 
upon  this  question,  the  law  was  thus  staled 
by  Shaw,  C.  J.  "  Had  the  note  been 
taken  for  two  distinct  liquidated  sums, 
consolidated,  and  the  consideration  had 
been  wholly  wanting,  or  wholly  failed  as  to 
one,  it  seems  quite  clear,  that,  according  to 
well-established  principles,  supported  by 
authorities,  the  note,  as  between  the  origi- 
nal parties,  and  all  those  who  stand  in  such 
relation,  as  to  allow  the  defence  of  want  of 
consideration,  it  would  be  competent  to 
the  court  to  apportion  the  note,  and  con- 
sider it  good  in  part,  and  void  in  part,  and 
to  permit  the  holder  to  recover  accord- 
ingly. 

"  In  Bayley  on  Bills  (Phillips  and  Se- 
wall's  ed. ),  340,  and  in  most  other  text- 
books, it  is  laid  down,  that  want  or  failure 
of  consideration  is  a  good  defence  as  be- 
tween immediate  parties,  or  holders  with- 
out value,  either  total  or  pro  tanto,  as  the 
failure  goes  to  the  M'hole,  or  part  of  the  con- 
sideration. Barber  v.  Backhouse,  Peake's 
R.  61.  Where  there  was  oi-iginally  no 
consideration,  for  part  of  the  sum  ex- 
pressed in  the  bill,  the  jury  may  appor- 
tion the  damages ;  per  Ld.  Kenyon. 
Darnell  v.  Williams,  2  Stark.  E.  166. 

"  That  the  holder  in  such  case  recovers 
on  the  note,  and  not  on  the  original  con- 
sideration, is  rendered  manifest  by  another 
series  of  decisions,  thereby  showing  that 
the  note  is  good  pro  lanto,  as  a  negotiable 
instrument,  upon  which  a  holder  by  in- 
dorsement may  sue  and  recover ;  whereas 
the  right  to  recover  upon  the  original  con- 
sideration would  not  be  negotiable,  and 
would  not  vest  in  the  holder  of  the  note  by 
indorsement. 

"  It  being  held  that  when  a  bill  or  note 
is  made  without  value,  or  as  an  accommo- 
dation note,  this  may  be  shown  as  a  good 
defence  against  the  payee  ;  it  is  also  held 
as  a  principle  absolutely  essential  to  the 
currency  of  hills  and  notes,  that  where  an 
indorsee  takes  a  bill  for  valuable  consider- 
ation, or  derives  title  through  any  one 
who  has  paid  value  for  it,  he  shall  recover 
to  the  amount,  notwithstanding  it  was 
originally  made  without  value,  and  as  an 
accommodation  bill.  It  follows,  as  a  ne- 
cessary consequence,  from  these  two  princi- 
ples, that  where  an  indorsee  of  an  accom- 
modation bill  has  taken  it  for  value,  but 
for  less  than  the  amount  expressed  by  the 
bill,  there  the  holder  shall  recover  only  to 
the  amount  for  which  he  has  given  value. 


Jones  V.  Ilibbert,  2  Stark.  E.  304.  In 
that  case  the  defendant  acce])ted  a  bill  for 
£415,  to  accommodate  Phillips  &  Co., 
who  indorsed  it  to  their  bankers  for  value, 
and  became  bankrupt ;  the  bankers  knew 
it  to  be  an  accommodation  acceptance,  and 
their  demand  against  Phillips  &  Co.  was 
£  265  only  ;  it  was  held  that  they  could 
only  recover  the  £  265,  and  they  had  a  ver- 
dict accordingly.  [Snow  v.  Ware,  13  Met. 
42  ;  Bassett  v.  Sanborn,  9  Cush.  58.] 

"  So  where  a  bill  accepted  as  a  gift  to 
the  payee  is  indorsed  for  a  small  consider- 
ation, the  indorser  can  recover  only  to  that 
extent.  Nash  v.  Brown,  Chitty  on  Bills, 
(5th  edit.)  93. 

"  From  these  cases  it  is  manifest,  that 
the  plaintiff  recovers  on  the  bill,  and  not 
on  the  original  consideration ;  otherwise 
the  right  to  sue  and  recover /wo /«;(?o  would 
not  pass  to  the  indorsee  by  the  negotiation 
of  the  bill.  They  therefore  establish  the 
proposition,  tliat  where  the  parts  of  a  bill 
are  divisible,  making  an  aggregate  sum, 
and  as  to  one  liquidated  and  definite  part 
there  was  a  valuable  consideration,  and  as 
to  the  other  part  there  was  no  considera- 
tion ;  the  bill,  as  such,  may  be  appor- 
tioned ;  and  a  holder  may  recover  for  such 
part  as  was  founded  on  a  good  considera- 
tion. 

"  But  it  is  contended  that  where  the 
parts  of  the  bill  are  not  liquidated,  and 
distinguishable  by  computation,  a  different 
rule  prevails,  and  several  English  cases  are 
relied  on  to  show,  that,  though  the  consid- 
eration fails  in  part,  the  whole  bill  is  recov- 
erable. Moggridge  v.  Jones,  14  East,  486  ; 
Morgan  v.  Richardson,  1  Campb.  40,  note  ; 
Tye  V.  Gwynnc,  2  Campb.  346  ;  Grant  v. 
Welchman,  16  East,  206.  In  these  cases 
it  was  held,  that  where  the  note  was  given 
for  an  entire  thing,  and  the  consideration 
afterwards  failed  in  part,  the  whole  bUl 
was  recoverable,  and  the  defendant  was 
left  to  his  cross-action.  As  where  the  note 
was  given  for  a  lease,  and  the  lease  was 
not  completed  according  to  contract ;  or 
for  a  parcel  of  hams,  and  they  proved  bad 
and  unmarketable  ;  or  for  goods,  and  they 
were  of  a  bad  quality  and  improperly 
packed  ;  or  for  an  apprentice-fee,  and  the 
apprentice  was  not  kept  by  his  master. 

"  In  this  respect  tliere  seems  to  be  some 
distinction  between  the  English  decisions 
and  those  of  New  York.  In  the  latter  it 
was  held,  that  upon  a  suit  between  origi- 
nal parties,  upon  a  note  given  upon  a  con- 


1  Eunyan    v.    Nichols,  11    Johns.  547;    The  People   v.  Niagara   C.  P.  12   Wcni 
246;  Eeed  u.  Prentiss,  1  N.  Ilamp.  174,  176. 


PART  IV.] 


ASSUMPSIT. 


117 


title,  promissorj  notes  being  given  for  the  purchase- money,  the 
better  opinion  seems  to  be,  that,  on  common-law  principles,  the 
covenants  in  the  deed  constitute  a  sufficient  consideration  for  the 
notes,  and  that  the  failure  of  title  constitutes  no  ground  of  defence 
to  an  action  upon  them.^  In  some  of  the  United  States,  however, 
this  defence  has  been  allowed.^ 

§  136  a.  Where  the  contract  is  entire^  the  general  rule  is,  that 
if  the  plaintiff  has  failed  to  perform  the  whole  on  his  part,  he  can 
recover  nothing ;  for  being  entire,  it  cannot  be  apportioned.     And 


tract  to  manufacture  casks,  the  defendant 
might  go  into  evidence  to  show  that  the 
casks  were  unskilfully  manufactured,  to 
reduce  the  amount  of  damages. 

"  But  without  relying  upon  this  differ- 
ence, we  think  the  Pmglish  decisions  may 
be  well  reconciled,  by  a  reference  to  the 
known  distinction  between  failure  of  con- 
sideration, and  want  of  consideration. 

"  All  the  cases  put  are  those  of  failure 
of  consideration,  where  the  consideration 
was  single  and  entire,  and  went  to  the 
■whole  note,  and  was  good  and  suflScient 
at  the  time  the  note  was  given,  but  by 
some  breach  of  contract,  mistake,  or  acci- 
dent, had  afterwards  failed.  There  the  rule 
is,  if  the  consideration  has  wholly  failed, 
or  tlie  contract  been  wholly  rescinded,  it 
shall  be  a  good  defence  to  the  note.  But 
if  it  have  partially  failed  only,  it  would 
tend  to  an  inconvenient  mode  of  trial  and 
to  a  confusion  of  rights,  to  try  such  ques- 
tion in  a  suit  on  the  note,  as  a  partial  de- 
fence, and  therefore  the  party  complaining 
shall  be  left  to  his  cross-action.  This  dis- 
tinction, and  the  consequence  to  be  drawn 
from  it,  is  alluded  to  by  Lord  EUenborough 
in  Tye  v.  Gwynne,  2  Campb.  346.  lie 
says,  •  There  is  a  dift'ei'ence  between  want 
of  consideration,  and  failure  of  considera- 
tion. The  former  may  be  given  in  evi- 
dence to  reduce  the  damages ;  the  latter 
cannot,  but  furnishes  a  distinct  and  inde- 
pendent cause  of  action.'  It  seems,  there- 
tore,  very  clear,  that  want  of  consideration, 
either  total  or  partial,  may  always  be 
shown  by  way  of  defence  ;  and  that  it  will 
bar  the  action,  or  reduce  the  damages, 
fi'om  the  amount  expressed  in  the  bill,  as 
it  is  found  to  be  total  or  partial  respective- 
ly. It  cannot,  therefore,  in  such  case,  de- 
pend upon  the  state  of  ttie  evidence, 
whether  the  ditferent  parts  of  the  bill  were 
settled  and  liquidated  by  the  parties  or 
not.  Whei-e  the  note  is  intended  to  be 
in  a  great  degree  gratuitous,  the  parties 
would  not  be  likely  to  enter  into  very  par- 
ticular stipulations  as  to  what  should  be 
deemed  payment  of  a  debt,  and  what  a 
gratuity.     The  rule  to  be  deduced  from  the 


cases  seems  to  be  this,  that  where  the  note 
is  not  given  upon  any  one  consideration, 
which,  whether  good  or  not,  whether  it 
fail  or  not,  goes  to  the  whole  note  at  the 
time  it  is  made,  but  for  two  distinct  and 
independent  considerations,  each  going  to 
a  distinct  portion  of  the  note,  and  one  is 
a  consideration  which  the  law  deems  valid 
and  sufficient  to  support  a  contract,  and 
the  other  not,  there  the  contract  shall 
be  apportioned,  and  the  holder  shall  re- 
cover to  the  extent  of  the  valid  considera- 
tion, and  no  further.  In  the  application 
of  this  principle,  there  seems  to  be  no  reason 
why  it  shall  depend  upon  the  state  of  the 
evidence,  showing  that  these  different  parts 
can  be  ascertained  by  computation ;  in 
other  words,  whether  the  evidence  shows 
them  to  be  respectively  liquidated  or  oth- 
erwise. If  not,  it  would  seem  that  the 
fact,  what  amount  was  upon  one  consider- 
ation, aud  what  upon  the  other,  like  every 
other  questionable  fact,  should  be  settled 
by  a  jury  upon  the  evidence.  This  can 
never  operate  hardly  upon  the  holder  of 
the  note,  as  the  presumption  of  law  is  in 
his  favor,  as  to  the  whole  note ;  and  the 
burden  is  upon  the  defendant  to  show,  to 
what  extent  the  note  is  without  considera- 
tion."    See  1 4  Pick.  208-211. 

In  New  York  the  right  of  recoupment 
of  damages  is  allowed,  though  the  dama- 
ges result  from  a  mere  breach  of  contract, 
and  are  unliquidated  ;  and  though  the  ac- 
tion be  upon  a  specialty ;  under  tlie  pro- 
vision of  Rev.  Stat.  Vol.  2,  p.  504,  §  96 
[77].  See  Van  Epps  v.  Harrison,  5  Hill, 
63;  Batterman  v.  Pierce,  3  Hill,  171; 
Ives  V.  Van  Epps,  22  Wend.  155. 

1  Lloyd  V.  Jewell,  1  Greenl.  352,  and 
note  to  2d  ed. ;  Howard  v.  Withara,  2 
Greenl.  390  ;  Knapp  v.  Lee,  3  Pick.  452  ; 
Vibbard  v.  Johnson,  19  Johns.  77  ;  Whi^ 
ney  v.  Lewis,  21  Wend.  131,  134  ;  Green- 
leaf  V.  Cook,  2  Wheat.  13;  Fulton  v, 
Griswold,  7  Martin,  R.  223  ;  22  Am.  Jur. 
26  ;  2  Kent,  Comm.  471  -  473. 

2  2  Kent,  Comm.  472,  473;  22  Am 
Jur.  26. 


118  LAW   OF   EVIDENCE.  [PART  IV. 

this  rule  has  been  often  applied  to  contracts  for  labor  and  service 
for  a  certain  term  of  time,  where  the  party  had  served  only  a  part 
of  the  time.  But  it  is  also  conceded,  that  if  the  part  performance 
of  a  contract  is  beneficial  to  the  promisee,  and  has  been  accepted 
by  him,  though  the  other  party  can  maintain  no  action  upon  the 
original  contract,  his  part  of  which  he  has  failed  to  perform,  yet 
he  may  maintain  a  general  assumpsit  for  the  actual  value  of  his 
labor  and  materials  which  the  promisee  has  accepted  and  enjoyed. 
Whether  the  defence  of  failure  of  performance  of  the  entire  contract 
can  be  sustained  in  an  action  for  the  value  of  labor  and  services, 
upon  the  common  counts,  is  a  question  upon  which  judges  are  not 
perfectly  agreed.  On  the  one  hand,  it  has  been  maintained  with 
great  force  of  reason,  and  so  adjudged,  that  the  party  contracting 
for  labor  merely,  for  a  certain  period,  does  so  with  full  knowledge 
that  he  must,  from  the  nature  of  the  case,  be  accepting  part  per- 
formance from  day  to  day,  if  performance  is  commenced  ;  and 
with  knowledge,  also,  that  the  other  may  eventually  fail  of  com- 
pleting the  entire  term ;  and  that,  therefore,  he  ought  to  pay  the 
reasonable  value  of  the  benefit,  which,  upon  the  whole,  he  has 
thus  derived,  over  and  above  the  damage  which  may  have  accrued 
to  him  from  the  non-performance  of  the  original  contract. ^  But 
the  general  current  of  decisions  is  to  the  contrary  ;  the  courts 
holding  that  this  case  is  not  to  be  distinguished  in  principle  from 
other  cases  of  failure  to  perform  an  entire  contract.^ 

1  Britton  v.  Turner,  6  N.  Hamp.  481.  payable  monthly  if  the  fornaer  wishes,  may, 

2  See  Stark  v.  Parker,  2  Pick.  267  (2d  at  any  time  during  the  year,  demand  pay- 
ed.), notes;  Olmstead  v.  Beale,  19  Pick,  ment  of  the  wages  due  him  for  the  entire 
528;  Pordage  v.  Cole,  1  Saund.  320,  n.  months  then  elapsed;  and  his  right  to 
(4) ;  Pceters  v.  Opie,  2  Saund.  352,  n.  (3),  monthly  payments  is  not  waived  by  ncg- 
by  Williams ;  Badgley  v.  Heald,  5  West,  lecting  to  demand  the  same  moathly. 
Law  Jour.  392.     [One  who  agrees  to  work  White  v.  Atkins,  8  Cush.  367.] 

for  another  a  year  for  a  certain  sum  named, 


PART  IV.]  ATTORNEYS.  119 


ATTORNEYS. 

,*  §  137,  Renndies  in  general  and  at  common  law  between  attorneys  at  law  onlj  and 

their  clients  treated  of  under  this  title. 

138.  In  action  by  attorney  for  slander  he  must  prove  by  record  or  documentary 

evidence  that  he  has  been  regularly  admitted  and  sworn  with  proof  that  he 
has  practised  in  his  profession. 

139.  In  suit  for^ees,  &c.,  he  must  pi'ove  retainer  a.nd  fees  andservices  charged.    What 

constitutes  retainer  considered. 

140.  Cannot  dissolve  partnership,  so  as  to  discharge  retiring  partner  from  liability 

to  client. 

141.  A  retainer  confers  on  the  attorney  all  the  powers  exercised  by  forms  and 

usages  of  the  court  in  which  suit  is  pending.     Illustrations. 

142.  Generally  must  follow  his  client's  instructions  so   far  as  consistent  with  his 

duty  to  the  court.     Retainer  generally  is  to  conduct  suit  to  its  termination. 

143.  Defences  considered. 

144.  Attorney  engages  to  employ  reasonable  skill. 

145.  Attorneys  more  particularly  liable  for  mismanagement  of  what  is  ordinarily 

allotted  to  that  department  of  the  profession. 

146.  An  action  lies  immediately  against  an  attorney  for  every  violation  of  his 

duty. 

147.  Attorneys  are  amenable  to  the  summary  jurisdiction  of  the  court  in  which 

they  are  admitted  to  practice. 

148.  If  action  at  law  against  attorney  is  for  loss  of  debt  by  his  misconduct,  exist- 

ence of  the  debt  is  material  to  be  proved  by  proper  testimony. 

149.  Proof  when  injury  results  from  an  attorney's  neglect  in  regard  to  a  conveyance 

of  title  and  other  cases.] 

§  137.  Under  this  title,  it  is  proposed  to  treat  only  of  Attorneys 
at  Law,  and  of  the  remedies  in  general,  and  at  common  law,  be- 
tween them  and  their  clients,  the  subject  of  attorneys  in  fact  hav- 
ing been  already  treated  under  the  head  of  Agency.  The  peculiar 
remedies,  given  by  statutes  and  ruios  of  court,  m  England,  and 
in  some  few  of  the  United  States,  being  not  common  to  all  the 
American  States,  and  applicable  to  but  few,  will  not  here  be  men- 
tioned. 

§  138.  Actions  by  attorneys,  as  such,  are  ordinarily  brought 
either  to  recover  payment  for  fees,  disbursements,  and  profession- 
al services,  or  to  recover  damages  for  slander  of  their  professional 
character.      In  the  latter  case,  it  seems  generally  necessarv  for 


120  LAW   OF  EVIDENCE.  [PART  IV. 

the  plaintiff  to  prove,  by  the  book  of  admissions,  or  by  other  equiva- 
lent record  or  documentary  evidence,  that  he  has  been  regularly 
admitted  and  sworn ;  with  proof  that  he  has  practised  in  his  profes- 
sion.^ But  where  the  slanderous  words  contained  a  tlireat  by  the 
defendant  that  he  would  move  the  court  to  have  the  plaintiff 
struck  off  the  roll  of  attorneys,  this  was  held  an  admission  that 
the  plaintiff  was  an  attorney,  sufiicient  to  dispense  with  further 
proof.2 

§  139.  When  the  suit  is  by  an  attorney, /or  fees,  &c.,  he  must 
prove  his  retainer,  and  the  fees  and  services  charged.  The  retainer 
may  be  proved  by  evidence,  that  the  defendant  attended  upon  the 
plaintiff,  at  his  office,  in  regard  to  the  business  in  question  ;  or, 
that  he  personally  left  notices  or  executed  other  directions  of 
the  plaintiff;  or,  that  he  was  present  and  assisting  at  the  trial, 
while  the  plaintiff  was  managing  the  cause  in  his  behalf;  or,  that 
he  has  spoken  of  the  plaintiff,  or  otherwise  recognized  him,  as  his 
attorney.^  If  the  retainer  was  to  commence  a  suit,  which  was 
afterwards  abated  by  a  plea  of  non-joinder,  this  is  sufficient  evidence 
of  authority  to  commence  another  suit  against  the  parties  named 
in  the  plea.*  So,  after  an  award  made  against  a  party,  a  retainer 
to  "  do  the  needful,"  is  an  authority  to  do  all  that  is  necessary  on 
the  part  of  the  client,  to  carry  the  award  into  complete  effect.^ 
So,  where  money  was  placed  in  the  attorney's  hands  to  invest  for 
his  client,  with  discretionary  power  "  to  do  for  her  as  he  thought 
best,"  and  he  lent  the  money  on  mortgage,  but  discovering  that  the 
security  was  bad,  sued  out  a  bailable  writ  against  the  borrower,  in 
his  client's  name,  it  was  held  a  sufficient  retainer  for  this  purpose.^ 
It  has,  however,  been  laid  down  as  a  general  rule,  that  a  special 

1  Jones  V.  Stevens,  11  Price,  235.    And  prietors,  &c.,  1  Cush.  11.     See  also  Man- 
see  Green  v.  Jackson,  Peake's  Cas.  236.  Chester  Bank  v.  Fellows,  8  Foster  (N.  H.) 

2  Berryman    v.    Wise,   4    T.   R.   366 ;  302.]     [*  A  party  to  a  suit,  in  wliich  the 
ante,  Vol.  1,  §  195,  note.  employment  of  senior  counsel  is  necessary, 

**  Hotchkiss  V.  Le  Roy,  9  Johns.    112 ;  is   liable  for  the  reasonable  value  of  the 

Burghart  v.  Gardner,  3  Barb.  S.  C.  R.  64.  services  of  a  counsellor  at  law  who  acts  as 

Sworn  to  an  answer  signed  by  the  attor-  senior  counsel  at  the  trial,  in  iiis  presence, 

ncy.     Harper  v.   Williamson,  1  McCord,  in  consultation  with  him,  and  witliout  ob- 

156.     But  where  one  attorney  does  busi-  jection  from  him,  under  a  retainer  for  that 

ness  for  another,  it  is  presumed  to  be  done  pur|)osc  by  the  attoniey  of  record,  altliough 

on  the  credit  of  the  attorney  who  employed  there  was  a  secret  agreement  between  him 

him,   and    not  of  the    client.      Scrace  v.  and  the  attornev  of  record  that  such  ser- 

Whittington,  2  B.  &  C.  11.     [The  author-  vices  should  be  paid  for  by  the  latter.  Brig, 

ity  of  an  attorney  who  has  been  employed  ham  v.  Foster,  7  Allen,  419.] 

by  a  director,  or  other  analogous  officer,  *  Crook  v.  Wriglit,  Hy.  &  M.  278. 

of  a  corporation,  to  appear  for  it,  witliout  ^  Dawson  v.  Lawley,  4  Esp.  65. 

any   specific  vote  therefor,  and  who  has  ^  Anderson  v.  Watson,  3  C.  «&  P.  214. 

been  paid  for  his  services  by  the  corpora-  But    see   Tabran   v.   Horn,    1    M.   &   R 

tion,  is  suflSciently  proved.    Field  v.  Pro-  228. 


FART  IV.]  ATTORNEYS.  121 

authority  must  be  shown  to  institute  a  suit,  though  a  general  au- 
thority is  sufficient  to  defend  one ;  and  accordingly,  where  one, 
acting  under  a  general  retainer,  as  solicitor,  undertook  to  defend 
a  suit  at  law  brought  against  his  client,  upon  certain  promissory 
notes,  and  filed  a  bill  in  chancery  to  restrain  proceedings  in  that 
suit,  the  bill  was  ordered  to  be  dismissed,  with  costs,  to  be  paid 
by  the  solicitor,  as  having  been  filed  without  authority.^  If  two 
attorneys  occupy  the  same  office,  one  being  ostensibly  the  princi- 
pal, and  the  other  his  clerk,  under  an  agreement,  that  the  latter 
shall  receive  all  the  benefit  of  the  common-law  business,  those  who 
employ  the  persons  in  the  office  will  be  presumed  to  employ  them 
upon  the  terms  on  which  business  is  there  done ;  and,  therefore, 
in  a  suit  by  the  clerk  for  the  fees  of  common-law  business,  those 
terms  are  competent  evidence  of  a  retainer  of  him  alone. ^  So, 
where  two  attorneys  dissolved  an  existing  partnership  between 
them,  but  a  client,  with  means  of  knowledge  of  that  fact,  contin- 
ued to  instruct  one  of  them  in  a  matter  originally  undertaken  by 
the  firm,  this  was  held  sufficient  evidence  that  the  joint  retainer 
had  ceased.3 

§  140.    But  where  solicitors  are  in  partnership,  they  cannot  dis 
solve  their  partnership,  as  against  the  client,  without  his  consent, 
so  as  to  discharge  tlie  retiring  partner  from  liability ;  much  less 
can  the  retiring  partner,  in  such  case,  accept  a  retainer  from  the 
opposite  party.* 

§  141.  The  effect  of  a  retainer  to  prosecute  or  defend  a  suit,  is 
to  confer  on  the  attorney  all  the  powers  exercised  by  the  forms 
and  usages  of  the  court  in  which  the  suit  is  pending.^     He  may 

1  Wright  y.  Castle,  3  Meriv.  12.  writincr,  though  out  of  court,  concerning 

2  Pinky  v.  Bagnall,  3  Doug.  155.  So,  the  facts  in  the  cause,  until  the  appearance 
if  both,  being  partners,  were  in  fact  em-  is  withdrawn,  or  the  party  revokes  the 
ployed,  but  only  one  was  an  attorney  of  attorney's  authority,  and  gives  notice  of 
the  court,  and  clid  the  business  there,  j-et  the  revocation ;  and  until  the  appearance 
both  may  jointly  recover.  Ai'dcn  v.  Tuck-  is  withdrawn,  or  the  authority  revoked  and 
er,  4  B.  &  Ad.  815  ;  5  C.  &  P.  248.  Un-  the  revocation  notified,  the  "pai'ty  cannot 
less  the  other  was  but  a  nominal  partner,  give  evidence,  on  the  trial  of  the  cause, 
Kell  V.  Kainby,  10  B.  &  C.  20.  And  see  that  the  attorney  had  no  authority  in  fact. 
Ward  V.  Lee,  13  Wend.  41;  Simon  v.  Le^vis  v.  Sumner,  13  Met.  269.]  |*If  it 
Bradshear,  9  Rob.  R.  59  (Louis.).  appear  by  the  record  that  the  defendant 

^  Perrinj  v  Hill,  2  Jurist,  858.  appeared  by  attorney,  he  may  disprove  the 

*  Cholmondeley  (Earl  of)  y.  Ld.  Clinton,  authority  of  such  attornev.     Hess  r.  Cole, 

Coop.  Ch.  Ca.  80;  19  Ves.  261,   273.   S.  3  Zab.    116.     Contra,  Kent  v.    Ricards,  3 

C. ;  Cook  V.  Rhodes,  19  Ves.  273,  note  j  Md.   Ch.  Decis.  392.     See  also  Fowler  y. 

[Walker  v.  Goodrich,  16  111.  341.]  Morrill,  8  Texas,  153,  where  it  is  held  that 

^  Smith  y.  Bosard,  2  McCord,  Ch.  409.  the  authority  of  an  attorney  at  law  under- 

[Where  a  sworn  attorney  of  the  court  en-  taking  to  represent  a  party  to  a  suit,  is 

ters  his  appearance  for  a  party,  the  party  is  prima  facie  presumed,  and  cannot  be  ques- 

bound  by  any  admissions  made  by  him  in  tioned  for  the  first  time  on  appeal  or  er- 


122 


LAW   OF   EVIDENCE. 


[part  IV. 


receive  payment ;  ^  may  bring  a  second  suit  after  being  nonsuited 
in  the  first  for  want  of  formal  proof ;  '^  may  sue  a  writ  of  error  on 
the  judgment ;  ^  may  discontinue  the  suit ;  *  may  restore  an  action 
after  a  not.  pros.  ;^  may  claim  an  appeal,  and  bind  his  client  by  a 
recognizance  in  his  name  for  the  prosecution  of  it ;  ^  may  submit 
the  suit  to  arbitration  ;  '^  may  sue  out  an  alias  execution  ;  ^  may 
receive  livery  of  seisin  of  land  taken  by  extent ;  ^  may  waive  ob- 
jections to  evidence,  and  enter  into  stipulations  for  the  admission 
of  facts,  or  conduct  of  the  trial ;  ^^  and  for  release  of  bail ;  ^^  may 
waive  the  right  of  appeal,  review,  notice,  or  the  like,  and  confess 
judgment.^^  But  he  has  no  authority  to  execute  any  discharge 
of  a  debtor,  but  upon  the  actual  payment  of  the  full  amount  of  the 
debt,^^  and  that  in  money  only  ;  ^^  nor  to  release  sureties ;  ^^  nor  to 


ror,  btit  where  an  act  purports  to  have 
been  done  by  agent  or  attorney,  as  the  wai- 
ver of  service  of  process,  and  it  does  not 
appear  that  the  agent  or  attorney  is  an  at- 
torney at  law,  there  is  no  pi'csumption  of 
authority,  and  the  want  of  authority  may 
be  assigned  for  error  by  the  party  thus 
represented.] 

1  Langdon  v.  Potter,  13  Mass.  320; 
Brackett  v.  Norton,  4  Conn.  517 ;  Gray  v. 
Wass,  1  Greenl.  257  ;  Erwin  v.  Bhike,  8 
Pet.  18;  Corn's  v.  Rose,  1  Dcsaus.  469; 
Hudson  v.  Johnson,  1  Wash.  10;  [Ducett 
V.  Cunninsj^hani,  39  Maine,  386.] 

2  Scott'y.  Klmendorf,  12  Johns.  315. 

^  Grosvenor  ik  Danforth,  16  Mass.  74. 

*  Gaillard  v.  Smart,  6  Cow.  385. 

6  Reinhold  v.  Alberti,  1  Binn.  469. 

^  Adams  v.  Robinson,  1  Pick.  462. 

■^  Somers  v.  Balabrega,  1  Dall.  164; 
Holker  v.  Parker,  7  Cranch,  436 ;  Buck- 
land  V.  Conway,  16  Mass.  396  ;  [Abbe  v. 
Rood,  6  McLean,  196.  He  may  submit  it 
to  arbitration  by  rule  of  court,  but  in  no 
other  way.  Markley  v.  Amos,  8  Rich.  (S. 
C. )  468.]  [*  If  an  attorney,  retained  to 
bring  an  action,  compromises  it  against  the 
express  directions  of  his  client,  he  is  liable 
to  an  action.  Court  of  Q  B.  Fray  v.  Vowles, 
5  Jur.  (N.  S.)  1253  ;  El.  &  El.  839.  But 
see  Svvinfun  v.  Lord  Chelmsford,  5  H.  &  N. 
890,  where  the  contrary  is  held.  See  also 
Swinfen  v.  Swinfen,  1  C.  B.  (N.  S.)  364, 
and  Smitli's  Heirs  v.  Dixon,  3  Met.  (Ky.) 
438,  for  discussion  of  general  subject.] 

^  Clieevcr  v.  Merrick,  2  N.  Hamp.  376. 
[An  attorney  may  sign  an  amended  peti- 
tion to  county  commissioners  to  alter  a 
town  way,  although  tiie  original  petition 
was  signed  by  the  petitioners  in  person. 
New  Marlborough  v.  County  Commission- 
ers, 9  Met.  423. 

'■'  Pratt  V.  Putnam,  13  Mass.  363. 


1"  Alton  V.  Gilmanton,  2  N.  Hamp.  520. 

11  Hughes  V.  Hollingsworth,  1  Murph. 
146. 

1'^  Pike  V.  Emerson,  5  N.  Hamp.  393 ; 
Talbott  V.  McGee,  4  Monr.  377  ;  Union 
Bank  of  Georgetown  v.  Geary,  5  Pet.  99. 
[*The  power  of  an  attorney  extends  to 
opening  a  default  which  he  has  taken 
(whether  properly  or  improperly),  and 
vacating  the  judgment  entirely,  even 
though  his  client  has  instructed  him  to 
the  contrary.  "  A  client  has  no  right  to 
interfere  with  the  attorney,  in  the  due  and 
orderly  conduct  of  the  suit,  and  certainly 
cannot  claim  to  retain  a  judgment  obtained 
and  an  execution  issued  Ijy  bis  attorney 
fraudulently."  Read  ».  French,  28  N.  Y. 
293,  and  cases  cited  by  com-t.] 

1^  Savory  v.  Chapman,  8  Dowl.  656  ; 
Jackson  v.  Bartlett,  8  Jolins.  361  ;  Kellogg 
V.  Gilbert,  10  Johns.  220;  5  Pet.  113; 
Gullet  V.  Lewis,  3  Stew.  23 ;  Carter  v. 
Talcott,  10  Verm.  471  ;  Kirk  v.  Glover,  5 
Stew.  &  Port  34  ;  Tankersly  v.  Anderson, 
4  Desaus.  45  ;  Simonton  v.  Barrell,  21 
Wend.  362 ;  [Lewis  v.  Gamnge,  1  Pick. 
347  ;  Wilson  v.  Wadleigh,  36  Maine,  496  ; 
32  lb.  110;  Derwort  v.  Loomer,  21  Conn. 
245;  Kent  v.  Ricards,  3  Md.  Ch.  Decis. 
392;  Stackhousc  v.  O'Hara,  14  Penn. 
State  R.  (2  Harris)  88  ;  Walker  v.  Scott, 
8  Eng.  (13  Ark.)  644.] 

1*  Com's  V.  Rose,  1  Desaus.  469  ;  Treas- 
urers V.  McDowell,  I  Hill  (S.  C.)  Rep. 
184  ;  Nolan  v.  Jackson,  16  111.  272;  Mc- 
Carver  v.  Nealey,  1  Iowa  (Greene),  360. 
He  may  take  payment  of  a  part  in  money 
and  the  residue  in  a  short  undoubted  note. 
Livingston  v.  Ratclift',  6  Barb.  201.] 

^^  Givensu.  Briscoe,  3  J.  J.  Marsh.  532, 
[Nor  to  make  an  agreement  which  will  re- 
lease an  indorsee.  Varnum  i'.  Bellamy,  4 
McLean.  87.] 


PART  IV.] 


ATTORNEYS. 


123 


enter  a,  retraxit  s"^  nor  to  act  for  the  legal  representatives  of  his 
deceased  client ;  ^  nor  to  release  a  witness.^ 

§  142.  In  regard  to  the  conduct  of  business  bj  the  attorney  for 
his  client,  he  must  show,  that  he  has  done  all  that  he  ought  to 
have  done.^  Though  he  is  generally  bound  to  follow  the  instruc- 
tions of  his  client,  yet  he  is  not  bound  to  do  what  is  intended 
merely  for  delay,  or  is  otherwise  in  violation  of  his  duty  to  the 
court.^  Generally  speaking,  the  contract  of  an  attorney  or  solici- 
tor, retained  to  conduct  or  defend  a  suit,  is  an  entire  and  contin- 
uing contract  to  carry  it  on  until  its  termination  ;  and  if,  without 
just  cause,  he  quits  his  client  before  the  termination  of  the  suit, 
he  can  recover  nothing  for  his  bill.^  But  he  may  refuse  to  go  on 
without  any  advance  of  money,  or  without  payment  of  his  costs  in 
arrear,  upon  giving  reasonable  notice  to  his  client ;  or,  for  just 
cause,  and  upon  reasonable  notice,  he  may  abandon  the  suit ;  and 
in  either  case  he  may  recover  his  costs  up  to  that  time.'^     But  he 


1  Lambert  v.  Sandford,  3  Blackf.  137. 

2  Wood  V.  Hopkins,  2  Penningt.  R.  689 ; 
Campbell  v.  ICincaid,  3  Monr.  566. 

^  Marshall  v.  Nagel,  1  Bailey,  308 ; 
[Browne  v.  Hyde,  6  Barb.  392.  Nor  has 
he  authority,  by  virtue  merely  of  his  re- 
tainer, to  prosecute  or  defend  a  suit,  to  re- 
lease a  claim  of  his  client  on  a  third  person 
for  the  purpose  of  making  such  person  a 
competent  witness  for  his  client,  Shores  v. 
Caswell,  13  Met.  413  ;  nor  to  execute  a 
bond  to  the  probate  court  upon  an  appeal, 
Clark  V.  Courser,  9  Foster  (N.  H.),  170. 
An  attorney's  bond  in  the  name  of  the 
principal  to  indemnify  a  sheriff,  though 
made  by  parol  authority,  will  bind  the 
principal,  as  a  simple  contract,  Ford  v. 
Williams,  3  Keman  (N.  Y.)  377.  An  at- 
torney cannot  execute  a  replevin  bond  for 
his  client ;  but  such  bond  is  voidable,  and 
the  client  may  adopt  it,  Narraguagus  v. 
Wentworth,  36  Maine,  339  ;  nor  assign 
the  judgment,  or  execution,  Wilson  v. 
Wadleigh,  lb.  496  ;  nor  can  lie  release  or 
postj)one  the  judgment  lien  on  lands  created 
in  a  suit  begun  by  himself  on  a  claim  given 
him  to  collect,  Wilson  v.  Jennings,  3  Ohio 
(N.  S.)  .528;  Doub  v.  Barnes,  1  Md.  Ch. 
Decis.  1 27 ;  nor  release  a  garnishee  from 
his  attachment,  Quarles  v.  Porter,  12  Mis. 
76 ;  nor  compromise  and  discontinue  a 
suit  brought  for  the  land  of  his  client,  in 
consideration  that  the  defendant  has  con- 
veyed to  him  a  portion  thereof,  Filby  v. 
IMlller,  25  Ponn.  State  R.  264.]  [*Nor 
strictly  as  an  attorney  to  admit  service  for 
his  client  of  an  original  process  by  which 
the  court  first  acquires  jurisdiction  of  his 


person.  To  authorize  such  admission, 
special  authority  must  appear.  Master- 
son  V.  Le  Claire,  4  Minn.  163.] 

*  Allison  V.  Rayner,  7  B.  &  C.  441 ;  1 
M.  &  R.  241,  S.  C.  ;  Gill  v.  Lougher,  1 
Cr.  &  J.  170  ;  1  Tyrwh.  121,  S.  C. ;  God- 
efroy  v.  Jay,  7  Bing.  413.  [In  a  suit  on  a 
special  contract  for  professional  sen'ices 
inider  the  allegation  of  the  performance 
thereof,  the  attorney  may  show  perform- 
ance by  another  attorney  with  the  defend- 
ant's consent.  Smith  v.  Lipscomb,  13 
Texas,  532.] 

^  Johnson  v.  Alston,  1  Campb.  176 ; 
Pierce  v.  Blake,  2  Salk.  515  ;  Vincent  v. 
Groome,  1  Chitty,  R.  182;  Anon.,  1  Wend. 
108  ;  Gilberts.  Williams,  8  Mass.  51. 

^  Harris  v.  Osbourn,  4  Tyrwh.  445  ;  2 
Cr.  &  M.  629,  S.  C. ;  Cresswell  v.  Byron, 
14  Ves.  271  ;  Anon.,  1  Sid.  31,  pi.  8;  1 
Tidd's  Pr.  86  (9th  edit.)  ;  Love  v.  Hall,  3 
Yerg.  408;  [Whitehead  v.  Lord,  11  Eng 
Law  &  Eq.  587.  The  authority  of  an  at- 
torney to  commence  and  prosecute  a  suit 
is  revoked  by  the  death  of  the  constituent, 
and  he  has  no  authority  without  a  new 
retainer,  to  appear  in  the  suit  for  the  con- 
stituent's executor  or  administrator.  Glea- 
son  V.  Dodd,  4  Met.  333  ;  Palmer  v.  Reiff- 
enstein,  1  Man.  &  Gran.  94 ;  Shoman  v. 
Allen,  lb.  96,  note.] 

■^  Lawrence  v.  Potts,  6  C  &  P.  428; 
Wadsworth  v.  Marshall,  2  C.  &  J.  665  ; 
Vansandau  v.  Browne,  9  Bing.  402  ;  Row- 
son  V.  Earle,  Mood.  &  M.  538 ;  Hoby  v. 
Built,  3  B.  &  Ad.  350  ;  Gleason  v.  Clark, 
9  Cowen,  57;  Castro  v.  Bennett,  2  Johns 
296. 


124  LAW  OF  EVIDENCE.  [PART  IV. 

cannot  insist  upon  the  payment  of  moneys  due  on  any  other  ac- 
count.i 

§  143.  In  the  defence  of  an  action  for  professional  fees  and 
services,  besides  denying  and  disproving  the  retainer,  the  defend- 
ant may  show,  that  the  plaintiff  has  not  exercised  the  reasonable 
diligence  and  skill  which  he  was  bound  to  employ ;  and  may 
depreciate  the  value  of  the  services,  upon  a  quantum  meruit,  by 
any  competent  evidence.  "Whether  negligence  can  be  set  up  as  a 
defence  to  an  action  for  an  attorney's  bill  of  fees,  is  a  point  which 
has  been  much  questioned.  If  the  services  have  proved  entirely 
useless,  it  has  long  been  agreed,  that  this  may  be  shown  in  bar 
of  the  whole  action  ;  and,  after  some  conflict  of  opinions,  the 
weight  of  authority  seems  in  favor  of  admitting  any  competent 
evidence  of  negligence,  ignorance,  or  want  of  skill,  as  a  defence 
to  an  action  for  professional  services,  as  well  as  for  any  other 
work  and  labor.^ 

§  144.  An  attorney  undertakes  for  the  employment  of  a  degree 
of  skill,  ordinarily  adequate  and  proportionate  to  the  business 
he  assumes.  Spondet  peritiam  artis.  Imperitia  cidpce  adnumeror 
tur?  Reasoncd)le  skill  constitutes  the  measure  of  his  engage- 
ment.* "  Attorneys,"  said  Lord  Mansfield,  "  ought  to  be  pro- 
tected when  they  act  to  the  best  of  their  skill  and  knowledge  ; 
and  I  should  be  very  sorry  that  it  should  be  taken  for  granted, 
that  an  attorney  is  answerable  for  every  error  or  mistake,  and 
to  be  punished  for  it  by  being  charged  with  the  debt,  which 
he  was  employed  to  recover  for  his  client,  from  the  person  who 
stands  indebted  to  him.  A  counsel  may  mistake,  as  well  as  an 
attorney.  Yet  no  one  will  say  that  a  counsel,  wlio  has  been 
mistaken,  shall  be  charged  with  the  debt.  The  counsel,  indeed, 
is  honorary  in  his  advice,  and  does  not  demand  a  fee  ;  ^  the  attor- 

1  Hcslop  V.  Metcalf,  8  Sim.  622.  Riffby,  4  B.  &  A.  202  ;  Iresonv.  Pearman, 

2  See  sti/ira,  AssuiMpsit,  §  136,  and  cases  3  B.  &  C.  799  ;  Hart  v.  Frame,  3  Jur.  547  ; 
there  cited;  Kannen  i;.  McMuIlen,  Peake's  6  CI.  &  Fin.  193;  Lanphier  v.  Pliipos,  8 
Cas.  59  ;  Chapel  v.  Hicks,  2  C.  &  M.  214 ;  C.  &  P.  475  ;  Davies  v.  Jenkins,  11  M.  & 
4  Tyrwh.  43  ;  Cutler  v.  Close,  5  C.  &  P.  W.  745  ;  [Wilson  v.  Coffin,  2  Cush.  316; 
337 ;  Cousens  v.  Paddon,  5  Tyrwh.  535 ;  Holmes  v.  Peck,  1  Phode  Island,  242  ; 
Hill  p.  Feathcrstonhauj;h,  7  Bing.  569  ;  Parker  v.  Rolls,  28  Eng.  Law  &  E(j.  424 ; 
Montriou  v.  Jeffcrys,  2  C.  &  P.  1 13  ;  Hunt-  Cox  p.  Sullivan,  7  Geo.  144.] 

ley  V.  Buhvcr,  6  Bing.  N.  C.   Ill  ;  Grant  ^  In  the  United  States,  the  offices  of  at- 

V.   Button,    14   Johns.  377;    Brackett   v.  torney   and   counsellor  are  so  frequently 

Norton,  4  Conn.  517.    But  sec  Tcmpler  exercised  by  the  same  person,  that   they 

«.  McLachlan,  2  New  Rep.  136;  Runyan  have   become   nearly   blended    into   one; 

V.  Nichols,   11   Johns.  547;     [*  NLxon  v.  and   actions  for  compensation  for  services 

Phelps,  29  Vt.  198.]  performed  in  either  capacity  are  freely  sus- 

2  Story  on  Bailm.  §  431.  tained  in  most  if  not  all  the  States  of  the 

*  Story  on  Bailm.  §§  432,  433  ;  Recce  v.  Union. 


PART  IV.]  ATTORNEYS.  125 

ney  may  demand  a  compensation .  But  neither  of  them  ought  to 
be  charged  with  the  debt  for  a  mistake."  ^  In  a  more  recent  case, 
the  law  on  this  subject  was  thus  stated  by  Lord  Brougham : 
"It  is  of  the  very  essence  of  this  kind  of  action  that  it  depends, 
not  upon  the  party  having  been  advised  by  a  solicitor  or  attorney 
in  a  way  in  which  the  result  of  the  proceeding  may  induce  tlie 
party  to  think  he  was  not  advised  properly,  and  may,  in  fact, 
prove  the  advice  to  have  been  erroneous  ;  —  not  upon  his  having 
received,  if  I  may  so  express  it  in  common  parlance,  bad  law,  from 
the  solicitor ;  nor  upon  the  solicitor  or  attorney  having  taken  upon 
himself  to  advise  him,  and,  having  given  erroneous  advice,  advice 
which  the  result  proved  to  be  wrong,  and  in  consequence  of  which 
error  the  parties  suing  under  that  mistake  were  deprived  and 
disappointed  of  receiving  a  benefit.  But  it  is  of  the  very  essence 
of  this  action  that  there  should  be  a  negligence  of  a  crass  descrip- 
tion, which  we  shall  call  crassa  negligentia,  that  there  should 
be  gross  ignorance,  that  the  man  who  has  undertaken  to  perform 
the  duty  of  attorney,  or  of  a  surgeon,  or  an  apothecary  (as  the 
case  may  be),  should  have  undertaken  to  discharge  a  duty 
professionally,  for  which  he  was  very  ill  qualified,  or,  if  not  ill 
qualified  to  discharge  it,  which  he  had  so  negligently  dischai^ged 
as  to  damnify  his  employer,  or  deprive  him  of  the  benefit  which  he 
had  a  right  to  expect  from  the  service.  That  is  the  very  ground 
Lord  Mansfield  has  laid  down  in  that  case,^  to  which  my  )ioble 
and  learned  friend  on  the  woolsack  has  referred  a  little  while  ago, 
and  which  is  also  referred  to  in  the  printed  papers.  It  was  still 
more  expressly  laid  down  by  Lord  EUenborough  in  the  case  of 
Baikie  v.  Chandless,^  because  there  Lord  EUenborough  uses  the 
expression,  '  an  attorney  is  only  liable  for  crassa  negligentia^ 
therefore,  the  record  must  bring  before  the  court  a  case  of  that 
kind,  either  by  stating  such  facts  as  no  man  who  reads  it  will  not 
at  once  perceive,  although  without  its  being  alleged  in  terms, 
to  be  crassa  negligentia,  —  something  so  clear  that  no  man  can 
doubt  of  it ;  or,  if  that  should  not  be  the  case,  then  he  must  use 
the  very  averment  that  it  was  crassa  negligentia.''  * 

1  Pitt  V.  Talden,  4  Burr.  2061.  And  sec  *  Purves  v.  Landell,  12  Clark  &  Fin.  91, 
Compton  V.  Chandless,  cited  3  Campb.  19  ;  98,  99.  This  was  an  action  in  Scotland, 
Kemp  V.  Burt,  4  B.  &  Ad.  424  ;  Snilcock  against  a  writer  to  the  sitrnet,  for  advising 
V.  Passman,  7  C.  &  P.  289.  [*  Nixon  v.  and  conducting  an  improper  and  irreguhir 
Phelps,  29  Vt.  198.]  mode  of  procedure  against  a  debtor,  which 

2  Pitt  V.  Yalden,  4  Burr.  2060.  proved  fruitless  and  expensive  to  the  plain- 
'  3  Campb.  17.  tiff,  and  resulted  in  large  damages  recov- 


126 


LAW   OF   EVIDENCE. 


[part  IV. 


§  145,  More  particularly,  an  attorney  is  held  liable  for  the 
consequence  of  ignorance  or  non-observance  of  the  rules  of  prac- 
tice of  the  court ;  for  the  want  of  proper  care  in  the  preparation 
of  a  cause  for  trial,  or  of  attendance  thereon,  and  the  use  of 
due  means  for  procuring  the  attendance  of  the  witnesses ;  and  for 
the  mismanagement  of  so  much  of  the  cause  as  is  usually  and 
ordinarily  allotted  to  his  department  of  the  profession.  But 
he  is  not  answerable  for  error  in  judgment  upon  points  of  new 
occurrence,  or  of  nice  and  doubtful  construction,  or  of  a  kind 
usually  intrusted  to  men  in  another  or  higher  branch  in  the 
profession  ^  If  he  undertakes  the  collection  of  a  debt,  he  is 
bound  to  sue  out  all  process  necessary  to  that  object.  Thus, 
he  is  bound  to  sue  out  the  proper  process  against  bail ;  ^  and 
against  the  officer,  for  taking  insufficient  bail,  or  for  not  de- 
livering over  the   bail-bond ;  ^   and   to   deliver   an   execution   to 


ered  against  him  in  an  action  for  false 
imprisonment.  Tlie  action  ultimately 
failed,  foi-  want  of  any  allegation  and  proof 
of  gross  ignorance  or  gross  negligence  on 
the  p;irt  of  the  attorney  or  law  agent. 
Lord  Campbell,  in  delivering  his  opinion, 
in  which  the  other  lords  concurred,  ex- 
pressed himself  as  follows  :  "  In  an  action 
such  as  this,  by  the  client  against  the  pro- 
fessional adviser,  to  recover  damages  aris- 
ing from  this  misconductof  the  professional 
adviser,  I  apprehend  there  is  no  distinction 
whatever  between  the  law  of  Scotland  and 
the  law  of  England.  The  law  must  be 
the  same  in  all  coimtries  where  law  has 
been  considered  as  a  science.  The  profes- 
sional adviser  has  never  been  supposed  to 
guarantee  the  soundness  of  his  advice.  I 
am  sure  I  should  have  been  sorry,  wiien  I 
had  the  honor  of  practising  at  the  bar  of 
England,  if  barristers  had  been  liable  to 
such  a  res])onsibility.  Though  I  was  tol- 
erably cautious  in  giving  opinions,  I  have 
no  doubt  that  I  have  repeatedly  given  er- 
roneous opinions  ;  and  I  think  it  was  Mr. 
Justice  Heath,  who  said  that  it  was  a  very 
difficult  thing  for  a  gentleman  at  the  bar 
to  be  called  upon  to  give  his  opinion,  be- 
cause it  was  calling  upon  him  to  conjecture 
what  twelve  other  persons  would  say  upon 
§oine  point  that  had  never  before  been  de- 
termined. Well,  then,  this  mny  happen  in 
all  grades  of  the  profession  of  the  law. 
Against  the  barrister  in  England,  and  the 
advocate  in  Scotland,  luckily  no  action 
nan  be  maintained.  But  against  the  attor- 
ney, the  professional  advi.scr,  or  the  procu- 
rator, an  action  may  be  maintained.  Hut 
it  is  only  if  he  has  been  guilty  of  gross  neg- 
ligence, because  it  would  he  monstrous  to 


say  that  he  is  responsible  for  even  falling 
into  what  must  be  considered  a  mistake. 
You  can  only  expect  from  him  that  he 
will  be  honest  and  diligent ;  and  if  there 
is  no  fault  to  be  found  either  with  his 
integrity  or  diligence,  that  is  all  for  which 
he  is  answerable.  It  would  be  utterly 
impossible  that  you  could  ever  have  a  class 
of  men  who  would  give  a  guaranty,  bind- 
ing themselves,  in  giving  legal  advice  and 
conducting  suits  at  law,  to  be  ahyays  in 
the  right. 

"Then,  my  lords,  as  crassa  npglirjentia 
is  certainly  the  gist  of  an  action  of  this 
sort,  the  question  is  whether  in  this  sum- 
mons that  negligence  must  not  eitlier  bo 
averred  or  shown  ?  This  is  not  any  tech- 
nical point  in  which  the  law  of  Scotland 
differs  from  the  law  of  England.  I  should 
be  very  sorry  to  see  applied,  and  I  hope 
this  House  would  be  very  cautious  in  ap- 
pl3ing,  technical  rules  which  prevail  in 
P^ngland  to  proceedings  in  Scotland.  But 
I  apprehend  that,  in  this  res])cct,  tlie  laws 
of  the  two  countries  do  not  differ,  and  that 
the  summons  ought  to  state,  and  must 
state,  what  is  necessary  to  maintain  the 
action ;  this  summons  must  cither  allege 
negligence,  or  must  show  facts  which 
inevitably  prove  that  this  person  has  been 
guilty  of  gross  negligence."  Ibid.  pp.  1 02, 
103. 

1  Godefroy  v.  Dalton,  6  Bing.  467,  per 
Tindal,  C.  J.  And  see  Lynch  v.  The 
Commonwealth,  16  S.  &  B.  .S08. 

-  Dearborn  ?'.  Dearborn,  1.')  Mass.  316, 
Crooker  v.  Hutchinson,  1  Verm.  73. 

"*  Crooker  c.  Hutchinson,  1  Verm  73' 
Simmons  v.  Bradford,  15  Mass.  82. 


EART  IV.]  ATTORNEYS.  127 

the  officer,  in  proper  season  after  judgment,  to  perfect  and  pre- 
serve the  lien  created  by  the  attachment  of  property  on  mesne 
process  ;  ^  but  not  to  attend  in  person  to  the  levy  of  the  exe- 
cution .^  If  he  doubts  the  expediency  of  further  proceeding, 
he  should  give  notice  to  his  client,  and  request  specific  instruc- 
tions ;  ^  without  which,  it  seems,  he  would  be  justified  in  not 
prosecuting,  in  cases  where  he  is  influenced  by  a  prudent  regard 
to  the  interests  of  his  client.^ 

§  146.  For  every  violation  of  his  duty,  an  action  lies  immediately 
against  the  attorney,  even  though  merely  nominal  damages  are 
sustained  at  the  time ;  for  it  is  a  breach  of  his  contract ;  but 
actual  damages  may  be  recovered  for  the  direct  consequences 
of  the  injury,  even  up  to  the  time  of  the  verdict.^  The  damages 
do  not  necessarily  extend  to  the  nominal  amount  of  the  debt 
lost  by  the  attorney's  negligence,  but  only  to  the  loss  actually 
sustained.^ 

§  147.  An  attorney,  being  an  officer  of  the  court  in  which 
he  is  admitted  to  practise,  is  held  amenable  to  its  summary  juris- 
diction^ for  every  act  of  official  misconduct."  The  matter  is  shown 
to  the  court  by  petition  or  motion,  ordinarily  supported  by  affi- 
davit ;  and  the  order  of  the  court,  after  hearing,  is  enforced  eithei 
by  attachment,  or  by  striking  his  name  from  the  roll.  If  he 
neglects  or  refuses  to  perform  any  stipulation  or  agreement 
entered  into  by  him  with  the  counsel  or  attorney  of  the  other 
party,  respecting  the  management  or  final  disposition  of  the 
cause,  or  touching  the  trial,  or  the  proofs  ;  or  fails  to  pay  or 
perform  anything,  which  he  has  personally  undertaken  that 
his  client  shall  pay  or  perform ;  or  improperly  refuses  to  deliver 
up  documents  to  his  client,  who  intrusted  them  to  him ;  or  to 

1  Phillips  u.  Bridge,  11  Mass.  246.    And  "^  In    several  of  the  American  States, 

see  Pitt  V.  Yalden,  4  Burr.  2060 ;  Russell  persons  of  full  age,  and  qualified  as  the 

i;.  Palmer,  2  Wils.  325.  statutesof  those  States  prescribe,  are  en^z'/^ed 

^  Williams  v.  Reed,  3  Mason,  405.  to  admission  to  practise   as  attorneys   in 

8  Dearborn  v.  Dearborn,  15  Mass.  316.  any  of  the  courts,  and  it  is  made  the  diit^ 

*  Crooker  v.  Hutchinson,  2  Chipm.  117.  of  the  judges  to  admit  them  accordingly 

^  Wilcox  V.  Plummer,  4  Peters,  R.  172.  Whether  persons  of  this  class  are  amcna- 

And  see  Marzetti  v.  Williams,  1  B.  &  Ad.  ble  to    the   summary  jurisdiction   of  tlie 

415.  courts,  has  been  doubted.    If  they  are  not, 

^  Dearborn  v.  Dearborn,  15  Mass.  316  ;  this  fact  shows  the  great  impolicy  of  pop- 

Crooker  v.   Hutchinson,   2   Chipm.    117;  ular  interference  with  the  forms  of  admin 

Huntington  v.  Rumnill,  3  Day,  390.    And  istering  justice,  since  in  this  case  the  legis- 

sce  infra,  §  599 ;  [Cox  v.  Sullivan,  7  Geo.  latures  will  have  unconsciously  deprived 

144.]    [*  It  is  not,  however,  to  be  presumed,  the  people  of  the  benefit  of  one  of  the 

in  the  absence  of  evidence,  that  a   debtor  strongest  securities  for  professional   good 

would  plead    the    statute    of   limitation,  conduct. 

White  V.  Goffe.  24  Texas,  658.] 


128 


LAW   OF   EVIDENCE. 


[part  IV. 


pay  over  to  his  client  any  moneys  which  he  has  collected  for 
him ;  he  is  liable  to  this  summary  mode  of  proceeding,  as  well 
as  to  an  action  at  law.^  But  for  mere  negligence  in  the  conduct 
of  his  client's  business,  the  courts  will  not  interfere  in  this 
manner,  but  will  leave  the  party  to  his  remedy  by  action. ^ 

§  148.  Where  the  remedy  against  an  attorney  is  pursued 
by  action  at  law,  and  the  misconduct  has  occasioned  the  loss 
of  a  debt,  the  existence  of  the  debt  is  a  material  fact  to  be 
shown  by  the  plaintiff.  If  it  were  a  judgment,  this  is  proved 
by  a  copy  of  the  record,  duly  authenticated.^  If  not,  and 
an  arrest  of  the  debtor  upon  mesne  process  is  a  material  allega- 
tion, the  writ  must  be  proved  by  itself,  or  by  secondary  evidence, 
if  lost ;  unless  it  has  been  returned ;  in  which  case  the  proof 
is  by  copy.  If  the  injury  to  the  plaintiff  was  occasioned  by 
departure  from  the  known  and  usual  course  of  practice,  this 
should  be  shown  by  the  evidence  of  persons  conversant  with 
that  course  of  practice.*  The  fact  of  indebtment  to  the  plaintiff, 
by  his  debtor  must  also  be  proved  by  other  competent  evidence, 
where  it  has  not  yet  passed  into  judgment.  In  short,  the  plain- 
tiff has   to  show,  that   he   had   a  valid  claim,  which  has  been 


1  1  Tidd's  Practice,  85-98  (9th  edit.) ; 
Sharp  V.  Hawker,  2  Bing.  N.  C.  66 ;  De 
Wolfe  V. ,  2  Chitty,  R.  68  ;  In  re  Fen- 
ton,  3  Ad.  &  El.  404 ;  In  re  Atkin,  4  B. 
&  A.  47.  To  support  the  action  for  mon- 
eys collected,  it  is  essential  to  prove  a  de- 
mand made  on  the  attorney.  Satterlee  v, 
Frazer,  2  Sandf.  S.  C.  R.  141  ;  [Pennine,- 
ton  V.  Yell,  6  Eng.  (Ark.)  212;  In  re 
Wills,  1  Mann  (Mich.)  392.  It  would  be 
a  great  misdemeanor  in  an  attorney,  ren- 
dering him  liable  to  censure  and  punish- 
ment as  well  as  to  an  action  for  damages 
fn  a  proper  case,  if  he  were  to  enter  an 
appearance  without  authority.  Smith  v. 
Howditch,  7  Pick.  137  ;  Lewis  v.  Sumner, 
13  Met.  269.  Ignorance  of  the  law  is  not 
good  cause  for  removing  or  suspending  an 
attorney  from  practice.  Bryant's  case,  4 
Foster  (N.  li.),  149. 

An  attorney,  when  delivering  up  papers 
intrusted  to  him,  is  bound  to  deliver  them 
up  in  a  reasonable  state  of  arrangement, 
so  that  the  party  to  whom  they  iire  deliv- 
ered may  not  be  put  to  unreasonable 
trouble  in  sorting  them.  Northwestern 
Railway  Co.  v.  Sharp,  28  Eng.  Law  & 
Eq.  R.  55,0.  Minutes  of  testimony  taken 
by  counsel  in  the  trial  of  an  action  in  which 
he  is  retained,  belong  to  himself  and  not 
to  his  client.     Anon.,  31  Maine,  590.      An 


agreement  between  an  attorney  and  his 
client  that  the  former  shall  pay  the  costs  of 
an  action  he  lias  brought  for  his  client  if 
unsuccessful,  is  illegal  and  void,  and  can- 
not be  enforced  by  the  client.  Low  v. 
Hutchinson,  37  Maine,  176.  If  an  attor 
ney,  suspecting  that  his  client  is  engaged 
in  a  systematic  course  of  fraud  and  forgery, 
continues  to  act  for  him  as  if  he  were  as- 
sisting to  enforce  just  rights  and  to  give 
effect  to  genuine  documents,  he  is  guilty 
of  gross  misconduct,  although  not  origi- 
nally privy  to  the  frauds,  nnd  although 
never  informed  of  the  manner-  in  which  the 
forged  documents  were  obtained,  and  al- 
though, to  carry  on  the  imposture,  persons 
may  be  introduced  to  him  acting  in  a 
feigned  name.  In  re  Barber,  6  Eng.  Law 
&  Eq.  R.  338.  Where  an  attorney  has 
fraudulently  misapplied  money  received 
from  his  client  fof  a  specific  purpose,  the 
coui't  will  exercise  its  summary  jurisdic- 
tion by  ordering  him  to  pay  the  money, 
although  he  has  obtained  a  certificate  of 
protection  from  the  Bankruptcy  Court. 
In  re ,  30  Eng.  Law  &  Eq.  R.  390] 

-  Brazier  v.  Bryant,  2  Dowl.P.  C.  600, 
In  re  Jones,  1  Chittv,  R.  651. 

8  Ante,  Vol.  1,  §  .501  -514. 

*  Russell  V.  Palmer,  2  Wils.  325,  328. 


PART  IV.J  ATTORNEYS.  129 

impaired  or  lost  by  the  negligence  or  misconduct  of  the  defend- 
ant.^ And  if  the  attorney,  having  received  money  for  his 
client,  mixes  it  with  his  own,  in  a  general  deposit  with  a  banker 
in  his  own  name,  and  the  banker  fails,  the  attorney  is  liable 
for  the  loss.  He  should  have  deposited  it  in  his  client's  name, 
or  otherwise  designated  it  as  money  held  by  him  in  trust  for 
his  client,  so  ear-marked  as  to  be  capable  of  precise  identifi- 
cation.2 

§  149.  If  the  injury  to  the  plaintiff  resulted  from  the  attor- 
ney's neglect  in  regard  to  a  conveyance  of  title,  or  in  the  exami- 
nation of  evidences  of  title,  it  is,  ordinarily,  necessary  to  produce 
the  deeds  or  documents  in  question ;  whether  the  neglect  were 
in  a  case  drawn  up,  for  the  opinion  of  counsel,  in  which  certain 
deeds  materially  affecting  the  title  were  omitted  ;  ^  or,  in  the 
insertion  of  unusual  and  injurious  covenants  of  title  in  a  lease, 
without  informing  him  of  the  consequences ;  *  or,  in  advising 
him,  or  acting  for  him,  in  the  investment  of  money  under  a 
will,  upon  the  perusal  of  only  a  partial  extract  from  the  will, 
and  not  of  the  entire  will  itself ;  ^  or,  were  any  other  misfeasance 
or  neglect  as  a  professional  agent  in  the  conveyance  of  title. 
And  if  the  client  has  thereby  been  evicted  from  the  land,  he 
should  prove  the  eviction  by  a  copy  of  the  judgment,  and  by 
the  writ  of  possession  duly  executed ;  ^  or,  if  he  has  peace- 
ably submitted  to  an  entry  and  ouster  without  suit,  he  must 
show  that  it  was  in  submission  to  an  elder  and  better  title.'^ 

1  1  Steph.  N,  p.  434.     And   see  infra,  *  Stannard  ».  Ullithorne,  10  Bing.  491. 
§  599.      [*  He  must  show  a  privity  of  ^  Wilson  v.  Tucker,  3  Stark.  R.  154. 
contract  between  himself  and  the  attorney.  ^  1  Steph.  N.  P.  434.    And  see  Gore  r. 
See  Robertson  v.  Fleming,  4  Macq.  H.  L.  Brazier,  3  Mass.  543. 

Cas.  167.]  7  Hamilton    v.    Cutts,   4    Mass.   349; 

2  Robinson  v.  Ward,  2  C.  &  P.  59.  Sprague  v.  Baker,  17  Mass.  586,  590 
8  Ireson  v.  Pearman,  3  B.  &  C.  799. 


▼OX.IL 


130  LAW   OF  EVIDENCE.  [PART  IV 


BASTARDY. 

[•§  150.  By  common  law  children  born  out  of  lawful  wedlock  are  bastards  ;  born  dur- 
ing wedlock  presumed  legitimate  unless  parents  are  divorced  a  rnensd  et 
thoro. 

151.  Husband  and  wife  incompetent  witnesses  to  prove  non-access,  but  are  compe- 

tent witnesses  in  cases  between  third  parties  as  to  questions  affecting  the  le- 
gitimacy of  their  own  children. 

152.  Period  of  gestation,  a  question  of  fact,  upon  all  the  evidence   physical  and 

moral  in  particular  case. 

153.  Issue  of  marriage  absolutely  void  is  illegitimate.] 

§  150.  By  the  common  law,  children  born  out  of  lawful  wed- 
lock are  bastards.  By  the  Roman  law,  if  the  parents  afterwards 
intermarried,  this  rendered  the  issue  legitimate.  The  rule  of 
the  common  law  prevails  in  the  United  States,  except  where 
it  has  been  altered  by  statutes ;  which  in  several  of  the  States 
have  been  enacted,  introducing,  under  various  modifications  not 
necessary  here  to  be  mentioned,  the  rule  of  the  Roman  law.^ 
The  modern  doctrine  of  the  common  law  on  this  subject  is 
this :  that  where  a  child  is  born  during  lawful  wedlock,  the 
husband  not  being  separated  from  the  wife  by  a  sentence  of 
divorce  a  mensd  et  ilioro,  it  is  presumed  that  they  had  sexual 
intercourse,  and  that  the  child  is  legitimate  ;  but  this  presumption 
may  be  rebutted  by  any  competent  evidence  tending  to   satisfy 

1  In  New  Hampshire,  Connecticut,  Rhode  courts,  on  application  of  the  fatlicr,  after 

Island,  New  York,  New  Jersey,  Pennsylva-  the  marriage.     Sec  3  Cruise's  Dig.  tit.  29, 

nia,  Dahnvare,  South    Carolina,    Tennessee,  ch.  2,  §  8,  note  (Greenleaf's  etl.),  where  the 

and  Arkansas,  the  rule   of  the   Common  laws  of  the  several  States  on  this  subject 

Law  is  understood  to  prevail.     A  subse-  are   more   particularly  stated.      [A   child 

quent  marriage  of  the  parents  renders  their  born  in  wedlock,  though  within  a  month 

prior  issue  legitimate  in  ATcji/HcAry,  Aldmma,  or  a  day  after  marriage,  is  presumed  to  be 

Illinois,  Louisiana,  Michigan,  and  Missouri,  legitimate;  and  when  the  mother  was  vis- 

Beside  the  marriage,  a  subsequent  acknowl-  ibly  pregnant  at  the  time  of  the  marriage, 

edgment  of  the  child  by  the  father  is  req-  it  is  presumed  that  the  child  is   the  oif- 

nisite  in  Indiana,  Ohio,   Vermont,   Virginia,  spring  of  the  husband.     State  v.  Herman, 

Maine,  Knd  Massachusdts.    In  .l/o»je,  other  13  Ired.  502.1     [*  See  Gaines  v.  Hennen, 

issue  must  have  been  born,  after  the  mar-  24  Howard,  U.  S.  R.  5.53,  for  an  examina- 

riage.     In  Massachusetts,  the  child  can  in-  tion  of  the  Louisiana  cases,   the  Spanish 

herit  only   from   its    parents.     In    North  law,  and   the  Code   Napoleon    upon    this 

Carolina,  a  decree  of  legitimacy  in  favor  subject.] 
of  ante-nuptial  issue  is  obtained  from  the 


PART  IV.] 


BASTARDY. 


IBl 


a  jury,  that  such  intercourse  did  not  take  place  at  any  time, 
when,  by  the  laws  of  nature,  the  husband  could  have  been  father 
of  the  child.i  If  the  husband  and  wife  have  had  opportunity 
for  intercourse,  this  merely  strengthens  the  presumption  of 
legitimacy ;  but  it  may  still  be  rebutted  by  opposing  proof.^ 
And  if  they  have  cohabited  together,  yet  this  does  not  exclude 
evidence,  that  the  husband  was  physically  incapable  of  being 
the  father.^  But  if  the  child  was  begotten  during  a  separation 
of  the  husband  and  wife  a  mensd  et  thoro  by  a  decree,  it  will 
be  presumed  illegitimate ;  it  being  presumed,  until  the  contrary 
is  shown,  that  the  sentence  of  separation  was  obeyed.  But  no 
such  presumption  is  made,  upon  a  voluntary  separation,* 

§  151.    The  husband  and  wife   are  alike  iiicompetent  witnesses^ 
to  prove  the  fact  of  non-access  while  they  lived  together.     But 


1  See  the  opinions  of  the  judges  in  the 
Banbury  Peerage  case,  in  Nicholas  on 
Adulterine  Bastardy,  pp.  183, 184  ;  and  of 
Ld.  Redesdale  and  Ld.  EUenborough,  Id. 
pp.  458,  488 ;  Morris  v.  Davies,  3  C.  &  P. 
427  ;  5  C.  &  Fin.  163  ;  Rex  v.  Luffe,  8 
East,  193;  Goodright  v.  Saul,  4  T.  R. 
356 ;  Pendrel  v.  Pendrel,  2  Stra.  924 ; 
Stegall  V.  Stegall,  2  Brock,  256  ;  Head  v. 
Head,  1  Turn.  &  Russ.  138;  1  Sim.  & 
Stu.  150  ;  Cope  v.  Cope,  5  C.  &  P.  604  ;  1 
M.  &  Rob.  269;  [Wright  v.  Hicks,  15 
Geo.  160;  12  lb.  155.]  The  presumption 
mentioned  in  the  text  is  not  to  be  rebutted 
by  circumstances  which  only  create  doiibt 
and  suspicion  ;  but  it  may  be  wholly  re- 
moved by  showing  that  the  husband  was 
—  1st,  impotent;  2dly,  constantly  absent, 
60  as  to  have  no  intercourse  or  communi- 
cation of  any  kind  with  the  mother  ;  3dly, 
absent  during  the  entire  period  in  which 
the  child  must,  in  the  course  of  nature, 
have  been  begotten ;  4th!y,  present,  but  un- 
der such  circumstances  as  to  afford  clear 
and  satisfactory  proof  that  there  was  no 
sexual  intercourse.  Such  e^-idence  as  this 
puts  an  end  to  the  question,  and  estab- 
lishes the  illegitimacy  of  the  child  of  a 
married  woman. 

It  is,  however,  very  difficult  to  conclude 
against  the  legitimacy  in  cases  where  there 
is  no  impotency,  and  where  some  society 
or  communication  is  continued  between 
the  husband  and  ■wife,  during  the  time  in 
question,  so  as  to  have  afforded  opportuni- 
ties for  sexual  intercourse.  If  such  oppor- 
tunities have  occurred,  no  evidence  can  be 
admitted  to  show  that  any  man,  other  than 
the  husband,  may  have  been  the  father  of 
the  wife's  child,  whatever  probabilities  may 
eyist  that  it  was  the  child  of  another  man. 


Throughout  the  investigation,  the  pre- 
sumption in  favor  of  legitimacy  is  to  have 
its  weight  and  influence,  and  the  evidence 
against  it  ought  to  be  strong,  distinct,  sat- 
isfactory, and  conclusive.  Hargrave  v. 
Hargrave,  9  Beav.  552.  This  case  is  val- 
uable for  the  observations  it  contains  on 
the  nature  and  extent  of  the  proof  neces- 
sary to  establish  a  case  of  adulterine  bas- 
tardy, and  tlie  kind  of  evidence  which  is 
admissible  in  such  cases.  [Hemmenway 
V.  Towner,  1  Allen,  209  ;  Phillips  v.  Allen, 
2  Allen,  453 ;  Doherty  v.  Clark,  3  Allen, 
151.] 

2  Ibid.  See  also  Commonwealth  v. 
Striker,  1  Browne,  App.  p.  xlvii. ;  3 
Hawks,  63;  1  Ashmead,  269.  [*The 
presumption  of  legitimacy  cannot  be  re- 
butted by  proof  of  the  wife's  adulter^ 
while  cohabiting  with  her  husband.  Sul- 
livan V.  Kelly,  3  Allen,  148.  But  it  is  not 
necessary  to  prove  that  generative  access 
between  the  husband  and  wife  was  physi 
cally  impossible ;  it  is  enough  to  show  cir 
cumstances  in  the  conduct  of  the  parties, 
and  otherwise,  which  render  the  moral 
presumption  against  such  access  irresisti- 
ble. Gurney  v.  Gurney,  II  W.  R.  659; 
8  L.  T.,  N.  S.,  380.  —  V.  C.  W.] 

^  Per  Ld.  EUenborough  in  Rex  v.  Luffe, 
8  East,  205,  206  ;  Foxcroft's  case.  Id.  200, 
n.  205.  This  case,  however,  is  more  fully 
stated  and  explained  in  Nicholas  on  Adul- 
terine Bastardy,  p.  557  -  564.  In  case  of 
access  of  the  husband,  nothing  short  of 
physical  impotency  on  his  part  will  serve 
to  convict  a  third  person  of  paternity  of 
the  offspring.  Commonwealth  v.  Shep 
herd,  6  Binn.  283. 

*  St.  George's  v.  St.  Margaret's  Parish 
1  Salk.  123;  Bulk  N.  P.  112. 


132  LAW   OF   EVIDENCE.  [PAiiT  IV. 

they  are  competent  to  testify,  in  cases  between  third  parties, 
as  to  the  time  of  their  own  marriage,  the  time  of  the  child's 
birth,  the  fact  of  access,  and  any  other  independent  facts  affecting 
the  question  of  legitimacy-^  The  husband's  declarations,  how- 
ever, that  the  child  is  not  his,  are  not  sufficient  to  establish 
its  illegitimacy,  though  it  were  born  only  three  months  after 
marriage,  and  thereupon  he  and  his  wife  had  separated,  by 
mutual  consent.2 

§  152.  In  regard  to  the  period  of  gestation,  no  precise  time 
is  referred  to,  as  a  rule  of  law,  though  the  term  of  two  hundred 
and  eighty  days,  or  forty  weeks,  being  nme  calendar  months 
and  one  week,  is  recognized  as  the  usual  period.  But  the  birth 
of  a  child  being  liable  to  be  accelerated  or  delayed  by  circum- 
stances, the  question  is  purely  a  matter  of  fact,  to  be  decided 
upon  all  the  evidence,  both  physical  and  moral,  in  the  par- 
ticular case.^ 

§  153.  Bastardy  may  also  be  proved  by  showing,  that  the  party 
was  the  issue  of  a  marriage  absolutely  void ;  as,  if  the  husband 
or  wife  were  already  married  to  another  person,  who  was  alive 
at  the  time  of  the  second  marriage.  So,  by  showing  that  the 
child  was  begotten  after  a  decree  of  divorce  a  vinculo  matrimonii. 
But  if  the  marriage  were  only  voidable,  and  not  ipso  /acto  void, 
the  issue  are  deemed  legitimate,  unless  the  marriage  was  avoided 
hj  the  parties  themselves,  in  the  lifetime  of  both.^  Aftet  the 
lapse  of  thirty  years,  and  after  the  death  of  all  the  parties, 
legitimacy  will  be  presumed  on   slight  proof.^ 

1  Ante,  Vol.  1,  §§  28,  344 ;  Standen  v.  the  expression.  Viall  v.  Smith,  6  E.  I. 
Standen,  Peake's  Cas.  32  ;  Rex  v.  Brain-  417.  Though  the  declarations  of  the  par- 
ley,  6  T.  R.  330 ;  Goodright  v.  Moss,  ents  are  inadmissible  to  bastardize  issue 
Cowp.  591  ■  [Parker  v.  Way,  15  N.  H.  born  during  the  wedlock,  they  are  admis- 
45.]  sible    to    show    that     the    parents    were 

2  Bowles  T.  Bingham,  2  Munf.  442  ;  3  not  married  at  the  time  of  the  birth. 
Munf.  599,  S.  C.     [General  reputation  in  Craufurd  v.  Blackburn,  17  Md.  49.] 

the  family  is  competent  evidence  in  a  case  ^  See  1  Beck's  Med.  Jurisp.  ch.  9  ;  Har- 

involving  legitimacy;  but  common  report  grave  &  Butler's  note  (2)  to  Co.  Lit.  123 

•f  the    neighborhood    is   not   competent,  b ;  4   Law    Mag.   25  -  49 ;    Nicholas    on 

Wright  r.  Hicks,  15  Geo.  160.]     [*  That  Adulterine  Bastardy,  pp.  212,  213;    The 

a  child  was  called  and  treated  by  a  man  Banbury  Peerage  case.  Id.  291  -  554 :  The 

and    his   fomily  as   his  daughter,  is   pre-  Gardner  Peerage  case.  Id.  209  ;   [Phillips 

Bumptive  proof  of  her  legitimacy,  although  v.  Allen,  2  Allen,  453.] 

the  town  registry  of  the  father's  marriage,  *  Co.  Lit.  33  a  ;  1  Bl.  Comm.  424. 

as  compared  with  the  time  of  the  daugh-  ^  Johnson   v.   Johnson,  1  Dosaus.  595. 

tor's  birth,  would  contradict  this.     A  dec-  [*  In   Town   of  Norfolk    v.    G.aylord,   28 

laration  by  the  father,  that,  nnless  he  made  Conn.   309,  which   Avas    a    bastardy   suit 

his  will,  the  daughter  could  get  nothing  by  brought  by  a  town,  the  defendant  having 

law,  is  admissible  as  evidence  tending  to  admitted  sundry  acts  of  illicit  intercourse 

prove  her  illegitimacy,  it  being  for  the  jury  with  the  motiicr  of  the  child,  prior  to  the 

to  ^termine  'he  sense  in  which  he  used  time  when  the  child  must  have  been  be- 


PART  rv.] 


BASTARDY. 


133 


gotten,  and  denied  any  subsequent  acts, 
it  was  held,  that  the  jury  might  properly 
consider  them  in  connection  with  the 
question  of  the  paternity  of  the  child,  as 
showing  a  habit  of  criminal  intercourse 
with  the  mother  on  the  part  of  the  defend- 
ant, and  facilities  for  such  intercourse,  and 
that  it  was  not  the  duty  of  the  court,  upon 
the  request  of  the  defendant,  to  exclude 
such  facts  from  their  consideration.  On 
an  issue  to  try  the  paternity  of  a  bastard 
child,  it  was  held  that  the  defendant  has  a 
right  to  shotr  that  the  child  does  not  re- 


semble him.  State  v.  Bowles,  7  Jones 
Law,  579.  But  the  complainant  was  not 
allowed,  in  Eddy  v.  Gray,  4  Allen,  435,  to 
prove  by  witnesses  having  no  especial  skill 
in  such  matters  a  resemblance  in  the  head 
and  features  between  the  child  and  defend- 
ant. Proof  of  sexual  intercourse  between 
the  parties  which  took  place  three  years  pre- 
vious to  the  time  when  the  child  was  begot- 
ten has  been  held  admissible  as  bearing 
upon  the  probability  of  the  alleged  sexual 
intercourse  which  is  the  subject  of  the 
prosecution.    Thayer  v.  Davis,  38  Vt.  163.] 


134  LAW   OF  EVIDENCK  [PART  IV. 


BILLS    OF    EXCHANGE    AND    PROMISSORY    NOTES. 

•§  153  a.  As  between  holder  of  a  bill  of  exchange  and  drawer  or  indorser,  lex  loci  coth 
tractus  of  drawer  or  indorser  governs  their  respective  liabilities. 

154.  Rules  of  evidence  in  reference  to  bills  of  exchange  and  promissory  notes,  the 

same.     Liabilities  of  parties  to  the  instmments,  of  three  classes. 

155.  PlaintifTs  allegations  to  be  proved  involve  four  points. 

156.  Ordinarily  the  bill  must  be  produced  at  the  trial,  in  all  the  parts  or  sets  in 

which  it  was  drawn. 

157.  If  issue  is  upon  point  specially  pleaded,  all  other  averments  are  admitted. 

General  issue  requires  proof  of  all  material  averments. 

158.  Attested  signature  must  be  proved  by  attesting  witness.     Signature  not  at- 

tested, by  evidence  of  person's  handwriting  or  his  admission. 

159.  If  several  signatures,  all  must  be  proved.     Admission  not  solemnly  made  may 

be  disproved.    Acts  equivalent  to  proof  of  signature. 

160.  Variance  between  bill  or  note  produced  and  declaration  is  fatal.    Plaintiff 

must  explain  apparent  alteration. 

161.  Acceptance  must  be  proved  in  action  against  acceptor.    Acts  sufficient  to  coa- 

stitute  it. 

162.  Same  proof  required  against  drawer,  maker,  or  indorser. 

163.  Plaintiff's  interest  in  bill  or  note,  or  title  to  sue,  must  be  proved. 

164.  Every  person  giving  currency  to  commercial  paper,  asserts  the  regularity  of 

all  such  previous  transactions  as  he  was  bound  to  know. 

165.  Admissions  by  act  of  acceptance   strictly  limited  to  those  things  which  the 

party  was  bound  to  know. 

166.  Plaintiff  need  not  allege  or  prove  any  indorsements  but  such  as  are  necessary 

to  convey  title  to  himself. 

167.  Where  bill  is  payable  to  order  of  several  partners,  generally  necessary  to  prove 

partnership  and  handwriting  of  partner  who  indorsed  it. 

168.  A  blank  indorsement  is  sufficient  prima  facie  to  convey  title  to  holder,  and  noth- 

ing more  need  be  proved. 

169.  What  must  be  proved  in  action  by  drawer  against  acceptor.     Bill  once  in  cir- 

culation will  be  presumed  to  come  into  drawer's  hands  by  payment. 

170.  In  action  by  accommodation  acceptor  against  drawer,  plaintiff  must  prove  pay 

mcnt  by  himself  or  special  damage. 

171.  Consideration  of  bill  maybe  impeached  by  original  parties  to  it,  and  tho.sa 

identified  with  them,  in  equity. 

172.  Bills  of  exchange  are  presumed  to  be  founded  upon  a  valuable  consideration. 

173.  The  burden  of  proof  is  somewhat  affected  by  the ybrm  of  the  issue. 

174.  Not  essential  to  right  of  action  against  acceptor  to  prove  presentment  for  pay- 

ment in  case  of  general  acceptance.     Sometimes  held  otherwise  when  accept- 
ance is  made  payable  at  particular  place. 

175.  Default  of  party  primarily  liable  must  be  proved  to  hold  an  indorser. 

176.  In  an  action  against  indorser  or  drawer  presentment  to  the  drawer  must  b« 

proved. 


PART  IV.]       BILLS   OF  EXCHANGE   AND  PROMISSORY  NOTES.  135 

177.  Presentment  not  excused  by  drawer's  death,  bankruptcy,  insolvency,  or  ab- 

sconding. 

178.  Presentment  must  be  at  a  reasonable  hour  of  a  day  for  transaction  of  secu^ 

lar  business. 

179.  Promissory  notes  should  generally  be  presented  for  payment  at   maturity. 

exceptions.    Banker's  check  may  be  presented  next  day. 

180.  Presentment  may  be  made  at  domicil  or  place  of  business  of  drawer. 
180  a.  In  England,  bill  payable  at  a  particular  place  must  be  presented  there. 

180  b.  In  America  generally,  not  necessary.    Failure  to  present  at  particular  place 
defence  only  so  far  as  it  occasions  damage. 

181.  Sufficient  to  prove  a  presentment  for  payment  at  maturity  of  bill  and  refusal. 

Refusal  to  accept  before  maturity  sufficient. 

182.  Presentment,  &c.,  proved  by  entries  in  books  of  notaries,  &c. 

183.  Proper  evidence  of  protest,  is  notarial  act. 

184.  Want  of  protest  how  excused. 

185.  Inland  bills  need  not  be  protested  unless  required  by  local  law. 

186.  In  action  against  drawer  or  indorser,  plaintiff  must  prove  that  defendant  had 

due  notice  of  the  dishonor  of  the  bill  or  note.    What  constitutes  due  notice. 
186  a.  Party  receiving  bill  as  collateral  security  not  bound  to  prove  a  strict  pre- 
sentment.   Burden  of  proof  on  debtor,  also  on  guarantor  to  show  loss. 

187.  Notice  of  dishonor  sent  by  mail  must  go  by  next  practicable  post  after  that  day. 

188.  When  the  parties  reside  in  same  town  where  dishonor  occurs,  notice  must  be 

personal.    If  near  by,  notice  must  be  received  next  day. 

189.  Sufficient  if  bill  described  in  notice  substantially  corresponds  with  that  in  the 

records. 

190.  Right  to  notice  may  be  waived.    What  constitutes  such  waiver.    Effect  of 

usage. 
190  a.  Circumstances  which  excuse  want  of  notice. 

191.  If  notice  has  been  given  by  letter  or  other  writing,  secondary  evidence  admis- 

sible without  notice  to  defendant  to  produce. 

192.  But  this  rule  is  restricted  to  notice  of  the  dishonor  of  the  biU  or  note  on  which 

the  action  is  brought. 

193.  Practice  as  to  giving  notice  of  dishonor  by  mail. 

194.  Notice  may  be  sent  to  party's  dwelling-house  or  place  of  business. 

195.  Facts  which  will  excuse  neglect  of  presentment  and  protest. 
195  a.  Rule  as  to  banker's  check. 

196.  Part  payment  or  promise  to  pay  excuses  want  of  evidence  of  due  Dresent- 

ment,  protest,  and  notice. 

197.  Usual  to  declare  as  if  due  presentment  and  notice  had  been  made. 

198.  Defences. 

199.  Consideration  conclusively  presumed  in  hands  of  innocent   third  persons, 

otherwise  in  hands  of  original  parties. 

200.  How  far  other  equities  between  original  parties  may  be  set  up  in  defence  not 

settled. 

201.  Acceptor  may  defend  by  proof  of  discharge  of  acceptance  by  holder.    What 

facts  sufficient. 

202.  Parties  contingently  liable  may  be  discharged  by  agreement  for  further  time 

between  holder  and  principal  debtor.  ^  ^    ^ 

203.  Parties  to  a  bill  competent  witnesses  for  other  parties  according  to  their  in 

terest  in  suit. 

204.  205,  206.  and  207,  Illustrations  of  above  rule.] 


13  3  LAW   OF  EVIDENCE.  [PART  IV 

§  153  a.  In  treating  this  subject,  the  rules  of  the  common  law 
merchant,  recognized  in  the  courts  of  England  and  the  United 
States  of  America,  will  alone  be  stated.  But  it  is  to  be  remem- 
bered, that  as  between  the  holder  of  a  bill  of  exchange  and  the 
drawer  or  indorser,  the  lexi  loci  eontractlls  of  the  drawer  and  of  the 
indorser,  and  not  of  the  acceptor,  governs  the  liabilities  of  the 
drawer  and  of  the  indorser,  respectively.  Thus,  A  drew  a  bill  in 
favor  of  B  (both  being  residents  of  Demarara),  upon  C,  resident 
in  Scotland,  who  accepted  it,  making  it  payable  in  London ;  and 
B  indorsed  it  to  D,  who  afterwards  became  bankrupt.  When  C's 
acceptance  became  due,  he  held  a  bill  of  exchange,  accepted  by 
D.  An  action  being  brought  in  Demarara,  by  D's  assignees, 
against  A  and  B  upon  the  bill,  it  was  held,  that  the  Roman-Dutch 
law,  prevalent  in  Demarara,  and  not  the  law  of  England,  must 
govern  the  case ;  and  that,  according  to  that  law,  the  defendants 
were  at  liberty  to  plead  D's  bill  as  a  compensation,  pro  tanto,  of 
the  bill  in  suit.^ 

§  154.  As  the  acceptor  of  a  bill  of  exchange,  and  the  maker  of 
a  promissory  note,  stand  in  the  same  relation  to  the  liolder,  the 
note  being  of  the  nature  of  a  bill  drawn  by  a  man  on  himself,  and 
accepted  at  the  time  of  drawing,  the  rules  of  evidence  are,  in  both 
cases,  the  same.  The  liabilities  of  the  parties  to  the  instruments 
are  of  three  general  classes  :  —  (1.)  Primary  and  absolute  liabil- 
ity ;  such  as  that  of  the  acceptor  of  a  bill  or  maker  of  a  note,  to 
the  payee,  indorsee,  and  bearer  ;  (2.)  Secondary  and  conditional 
liability  ;  such  as  that  of  the  drawer  of  a  bill,  to  the  payee  or 
indorsee,  and  of  the  indorser  to  the  indorsee ;  (3.)  Collateral  and 
contingent  liability ;  such  as  that  of  the  acceptor  to  the  drawer  or 
indorser ;  and  of  the  drawer  to  the  acceptor.  And,  accordingly, 
the  action  upon  a  bill  or  note  will  be  brought,  either,  (1.)  by  the 
payee  or  bearer,  against  the  acceptor  or  maker  ;  or  (2.)  by  the 
indorsee  against  the  acceptor  or  maker ;  or  (3.)  by  the  payee, 
against  the  drawer  of  a  bill ;  or  (4.)  by  the  indorsee,  against  the 
drawer  of  a  bill,  or  against  the  indorser  of  a  bill  or  note ;  or  (5.) 
by  the  drawer  or  indorser  of  a  bill  against  the  acceptor ;  or  (6.)  by 
the  acceptor,  against  the  drawer. 

§  155.  In  these  forms  of  remedy,  the  material  allegations  on  the 
part  of  the  plaintiff  involve  four  principal  points,  which,  if  not 

1  Allen  r.  Kemble,  13  Jur.  287,  Priv.  Coun 


PART  IV.]       BILLS   OF  EXCHANGE   AND  PROMSSORY  NOTES. 


13T 


judicially  admitted,  he  must  prove ;  namely,  first^  the  existence 
of  the  instrument,  as  described  in  the  declaration ;  secondly^  how 
the  defendant  became  party  to  it,  and  his  subsequent  contract ; 
thirdly,  the  mode  by  which  the  plaintiff  derived  his  interest  in 
and  right  of  action  upon  the  instrument;  said  fourthly,  the  breach 
of  the  contract  by  the  defendant.  The  plaintiff  will  not  be  holden 
to  prove  a  consideration,  unless  in  special  cases,  where  his  own 
title  to  the  bill  is  impeached,  as  will  be  shown  hereafter.  In  treat- 
ing this  subject,  therefore,  it  is  proposed  to  consider  these  four 
principal  points,  in  their  order.^ 


1  In  this  order,  that  of  Mr.  Chitty  has 
been  followed ;  whose  treatise  on  Bills, 
chap.  5  (9th  edit.),  and  the  treatise  of  Mr. 
Justice  Story  on  Bills,  have  been  freely  re- 
sorted to,  throughout  this  Title. 

The  usual  declarations  on  bills  and 
notes  are  in  the  following  forms,  accord- 
ing to  the  present  practice  in  England, 
and  in  most  of  the  United  States,  where 
the  common-law  remedies  are  pursued. 

(1.)  Payee  v.  Acceptor,  of  a  foreign  bill. 
"  For  that  one  E.  F.  at in  the  king- 
dom   {or  State)  of on made    his 

bill  of  exchange  in  writing  directed  to  the 
said  [defendant]  at ,  and  thereby  re- 
quired the  said  [defendant]  in days  [or, 

months,  &.C.]  after  sight  [or,  date]  of  that 
his  first  of  exchange,  the  second  and  third 
of  the  same  tenor  and  date  not  paid,  to  pay 

to  the  plaintiff [here  insert  the  sum  as 

expressed  in  the  bill ;  and  if  the  currenci/  men- 
tioned in  the  bill  is  one  which  has  not  been  rec- 
ognized, and  its  value  not  established  by  statute, 
the  value   in  the  national  currency  should  be 

averred,] and  the   said  [dtfendant]  on 

accepted  the  said  bill,  and  promised 

the  plaintiff  to  pay  the  same,  according  to 
the  tonor  and  effect  thereof  and  of  his  said 
acceptance.     Yet,"  &c. 

In  this  case  the  proposition  of  fact,  to 
be  maintained  by  the  plaintiff,  involves, 
first,  the  existence  of  such  a  bill  as  he  de- 
scribes, and  secondly,  that  the  defendant 
accepted  it  as  alleged. 

(2.)  Payee  v.  Maker,  of  a  negotiable 
promissory  note.  "  For  that  the  said  (de- 
fendant) on by  his  promissory  note  in 

writing,  for  value  received,  promised  the 
plaintiff  to  pay  him  or  his  order dol- 
lars   in days  [or,  months,  &c.]  after 

the  date  thereof     Yet,"  &c. 

Here  the  plaintiff's  case  is  made  out  by 
the  production  and  proof  of  the  note. 

(3.)  Indorsee  v.  Acceptor,  of  a  foreign  bill. 
"  For  that  one  E.  F.  at in  the  king- 
dom, &c.  on made  his  bill  of  exchange 

m  writing,  and  directed  the  same  to  the 


said  {defendant)  at and  thereby  re- 
quired the  said  defendant  in days  [or, 

months,  &c.]  after  sight  [or,  date]  of  that 
his  first  of  exchange,  the  second  and  third 
of  the  said  tenor  and  date  not  paid,  to  pay 

to  one  G.  H.  or  his  order [as  in  No.  1] 

and  the  said  [defendant]  then  accepted  the 
said  bill :  and  the  said  G.  H.  then  indorsed 
the  same  to  the  plaintiff;  [or,  indorsed  the 
same  one  to  J.  K.,  and  the  said  J.  K. 
then  indorsed  the  same  to  the  plaintiff:] 
of  all  which  the  said  (defendant)  then  had 
notice,  and  in  consideration  thereof  then 
promised  the  plaintiff  to  pay  him  the 
amount  of  said  bill,  according  to  the  tenor 
and  effect  thereof  and  of  his  said  accept- 
ance.    Yet,"  &c. 

In  this  action  the  plaintiff's  case  is  made 
out  by  proof  of  the  acceptance,  and  of  the 
indorsement ;  the  acceptance  being  an  ad- 
mission that  the  bill  was  duly  drawn. 

(4.)  Indorsee  v.  Maker,  of  a  promissory 
note.     "For  that  the  said  (defendant)  on 

by  his  promissory  note  in  writing,  for 

value  received,  promised  one  E.  F.,  to  pay 

him   or   his  order in days    [or, 

months,  &c.]  from  said  date;  and  the  said 
E.  F.  then  indorsed  the  said  note  to  the 
plaintiff ;  of  which  the  said  [dfendant]  then 
had  notice,  and  in  consideration  thereof 
then  promised  the  plaintiff  to  pay  him  the 
amount  of  said  note  according  to  the  ten- 
or thereof     Yet,"  &c. 

Here  the  plaintifTs  case  is  made  out  by 
proof  of  the  maker's  signature,  and  of  the 
indorsement. 

(5.)  Bearer  v.  Maker,  of  a  promissory 
note.     "For  that  the  said  (defendant)  on 

by  his  promissory  note  in  writing,  for 

value  received,  promised  one  E.  F.  to  pay 

him  or  the  bearer  of  said  note in  — — • 

days  [or,  months,  &c.]  from  said  date ;  and 
the  said  E.  F.  then  assigned  and  delivered 
the  said  note  to  the  plaintiff,  who  then  be- 
came and  is  the  lawful  owner  and  bearer 
thereof;  of  which  the  said  (defendant)  then 
had  notice,  and  in  consideration  thereof 


138 


LAW   OF  EVIDENCE. 


[part  IV. 


§  156.    And  FIRST,  as  to  the  existence  of  the  instrument,  as  de- 
scribed in  the  declaration.     Ordinarily  the  bill  mnst  be  produced  at 


then  promised  the  plaintiff  to  pay  him  the 
amount  of  said  note  according  the  tenor 
thereof.     Yet,"  &c. 

This  declaration  is  proved  by  produc- 
tion of  note,  and  proof  of  its  execution  by 
the  defendant. 

(6.)  Payee  v.  Drawer,  of  a  foreign  bill, 
on   non-acceptance.      "For  that  the  said 

[defendant]  at on made  his  bill  of 

exchange  in  writing,  and  directed  the  same 

to  one  E.   F.  at in  the  kingdom  of 

,  and  thereby  required  the  said  E.  F. 

in days  [or,  months,  &c.]  after  sight 

\or,  date]  of  tliat  his  first  of  exchange,  tlie 
second  and  third  of  the  same  tenor  and 

date  not  paid,  to  pay  to  the  plaintiff 

[as  in  No.  1]  ;  and  the  said  bill,  on at 

said was  presented  to  the  said  E.  F. 

for  acceptance,  and  he  refused  to  accept 
the  same  ;  of  all  which  the  said  [defendant] 

on had  due  notice,  and  thereby  became 

liable  to  pay  to  the  plaintiff  the  amount  of 
said  bill  on  demand,  and  in  consideration 
thereof  promised  tiie  plaintifif'  to  pay  him 
the  same  accordingly.     Yet,"  &c. 

Here,  the  plaintiff  must  prove,  if  trav- 
ersed, tlie  drawing  of  the  bill,  its  present- 
ment to  the  drawee  for  acceptance,  and  his 
refusal  to  accept  it,  and  notice  thereof  to 
the  defendant ;  together  with  the  protest, 
it  being  a  foreign  bill.  See  Salomons  v. 
Staveley,  3  Doug.  298. 

(7.)  indorsee  v.  Drawer,  of  a  foreign  bill, 
on  non-acceptance.     "  For   that  tlie   said 

[defendanll^  at on made  his  bill  of 

exchange  in  writing,  and  directed  the  same 

to  one  E.  F.  at in  the  kingdom  of , 

and  thereby  required  the  said  E.  F.  in 

days  [w,  months,  &c.]  after  sight  [or,  date] 
of  that  his  first  of  exchange,  the  second 
and  third  of  the  same  tenor  and  date  not 

fiaid,  to  pay  to  one  G.  H.  or  his  order 
as  in  No.  l]  and  the  said  G.  H.  then  in- 
dorsed the  same  to ,  [as  in  No.  3]  and 

the  said  hill,  on at  said was  pre- 
sented to  the  said  E.  F.  for  acceptance,  and 
he  refused  to  accept  the  same  ;  of  all  which 

the  said  [drfendatit]  on had  due  notice, 

and  thereby  became  liable  to  pay  to  the 
plaintiff  the  amount  of  said  bill  on  demand, 
and  in  consideration  thereof  promised  the 
plaintiff  to  pay  him  the  same  accordingly. 
Yet,"  &c. 

A  traverse  of  this  declaration  puts  the 
plaintiff  to  prove  the  drawing  of  the  bill, 

—  the  psiyee's  indorsement,  and  all  the 
subsequent  indorsements  declared  u])on,  — 
presentment  to  the  drawee,  —  liis  default, 

—  and  notice  to  the  defendant  of  the  dis- 
honor of  the  bill ;  together  with  tiie  pro- 
test, as  before. 


(8.)  Indorsee  v.  Indorser,  being  payee  of 
a  foreign  bill,  on  non-acceptance.     "  For 

that  one  E.  F.  at on made  his 

bill  of  exchange,  and  directed  the  same  to 

one  G.  H.  at in  the  kingdom  of , 

and  thereby  required  the  said  G.  H.  in 

days  [or,  months,]  after  sight  [or,  date]  of 
that  his  first  of  exchange,  the  second  and 
third  of  the  same  tenor  and  date  not  paid,  to 
pay  to  the  said  [defendant]   or  his  order, 

[here  describe  the  bill  as  in  No.  1  ] 

and  the  said  [defendant]  then  indorsed  the 

same  [as  in  No.  3]  ;  and  the  said  bill  on 

at  said was  presented  to  the  said  G. 

H.  for  acceptance,  and  he  refused  to  accept 
the  same  ;  of  all  which  the  said  [defendant] 

on had  due  notice,  and  thereby  became 

liable  to  pay  to  tlie  plaintiff  the  amount 
of  said  bill  on  demand,  and  in  considera- 
tion thereof  promised  the  plaintiff  to  pay 
him  the  same  accordingly.     Yet,"  &c. 

The  proof  of  this  declaration  is  the  same 
as  in  the  preceding  case. 

(9.)  Drawer  v.  Acceptor.     "For  that  the 

plaintiff  on made  his  bill  of  exchange 

in  writing,  and  directed  the  same  to  said 
[de/e7}da7it]  and  thereby  required  him,  in 

days  [or,  months,  &c.]  after  sight  [or, 

date]  of  that  his  first  of  exchange,  the 
second  and  third  of  the  same  tenor  and 
date  not  paid,  to  pay  to  one  E.  F.  or  his 

order [as  in  No.  1]  and  delivered  the 

same  to  the  said  E.  F.,  and  the  said  [de- 
fendant] then  accepted  the  same,  and 
promised  the  plaintiff  to  pay  the  same, 
according  to  the  tenor  and  effect  thereof, 
and  of  his  said  acceptance ;  yet  he  did  not 
pay  the  amount  thereof,  although  the  said 
bill  was  presented  to  him  on  the  day  when 
it  became  due,  and  thereupon  the  same 
was  then  and  there  returned  to  the  plain- 
tiff, of  which  the  said  [defendant]  had  no- 
tice." 

In  this  case,  the  plaintiff  may  be  required 
to  prove  the  acceptance  of  the  bill  by  the 
defendant,  — its  presentment  for  payment, 
and  his  refusal,  —  payment  of  the  bill  by 
the  plaintiff,  —  and,  that  the  defendant  had 
effects  of  the  plaintiff  in  his  hands ;  of 
which,  however,  the  acceptance  of  the  bill  is 
prima  facie  evidence.  It  is  not  necessary 
for  the  plaintiff  to  make  out  a  title  to  the 
bill  under  the  payee.  Kingman  v.  Hotal- 
ing,  2.5  Wend.  423. 

(10.)  huhrserv.  Acceptor.  In  this  case, 
the  plaintiff'  may  declare  specially,  as  in 
the  preceding  case,  mutatis  mutandis ;  but 
the  more  usual  course  is  to  declare  upon 
his  original  relation  of  payee  or  indorsee, 
as  in  Nos.  1  and  3. 

(U.)  Acceptor  v.  Drawer,  of  an  accom- 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMISSORY   NOTES. 


139 


the  trial,  in  all  the  parts  or  sets  in  which  it  was  drawn.^  If  the 
bill  or  other  negotiahle  security  he  lost,  there  can  be  no  remedy  upon 
it  at  law,  unless  it  was  in  such  a  state,  when  lost,  that  no  person 
but  the  plaintiff  could  have  acquired  a  right  to  sue  thereon.  Oth- 
erwise, the  defendant  would  be  in  danger  of  paying  it  twice,  in 
case  it  has  been  negotiated.  It  is  also  his  voucher,  to  which  he  is 
entitled  by  the  usage  of  merchants,  which  requires  its  actual  pre- 
sentation for  payment,  and  its  delivery  up  when  paid.^  Therefore, 
wherever  the  danger  of  a  double  liability  exists,  as  in  the  case  of 
a  bill  or  note,  either  actually  negotiated  in  blank,  or  payable  to 
bearer,  and  lost  or  stolen,  the  claim  of  the  indorsee  or  former 
holder  has  been  rejected.^  And  whether  the  loss  was  before  or 
after  the  bill  fell  due  is  immaterial.*  On  the  other  hand,  if  there 
is  no  danger  that  the  defendant  will  ever  again  be  liable  on  the 
bill  or  note,  as  if  it  be  proved  to  have  been  actually  destroyed, 
while  in  the  plaintiffs  own  hands,^  or  if  the  indorsement  were  spe- 
cially restricted  to  the  plaintiff  only,^  or  if  the  instrument  was  not 


modation-bill.  "  For  that  the  said  [defend- 
ant]   on in   consideration    that    the 

plaintiff,  at  the  request  of  the  said  [defend- 
ant] and  for  his  accommodation,  had  then 
accepted  a  certain  bill  of  exchange  of  that 
date  drawn  by  the  said  [defendant]  xipon  the 

plaintiff  for  the  sum  of payable  to  one 

E.  F.  or  his  order  in days  [or,  months, 

&c.]  after  sight  [or,  the  date]  of  said  bill, 
promised  the  plaintiff  to  furnish  him  with 
money  to  pay  said  bill  at  the  time  when 
the  same  should  become  payable.  Yet 
the  said  [Jefoidant]  never  did  furnish  the 
plaintiff  with  said  money,  by  reason  where- 
of the  plaintiff  has  been  compelled  with 
his  own  money  to  pay  the  amount  of  said 
bill  to  the  holder  thereof,  of  which  the  said 
defendant  had  due  notice." 

In  this  case,  the  plaintiff  must  prove  the 
drawing  of  the  bill  and  its  acceptance ;  he 
must  rebut  the  presumption  that  he  had 
effects  of  the  drawer  in  his  hands,  which 
results  from  his  acceptance,  by  some  evi- 
dence to  the  contrary  ;  and  he  must  prove 
that  he  has  paid  the  bill.  This  last  fact  is 
not  established  by  production  of  the  bill 
without  proof  that  it  has  been  put  into 
circulation  since  the  acceptance ;  nor  will 
a  receipt  of  payment  on  the  back  of  the 
bill  suffice,  without  showing  that  it  was 
signed  by  some  person  entitled  to  demand 
payment.  Pfiel  v.  Vanbatenburg,  2  Campb. 
439. 

It  is  to  be  observed,  that,  where,  by  the 
course  of  practice,  the  precise  time  of  tiling 
the  declaration  does  not  judicially  appear, 


it  may  be  necessaiy,  and  is  certainly  expe- 
dient, to  insert  an  averment  that  the  time 
of  payment  of  the  bill  or  note  is  elapsed. 
But  where  tjie  declaration  is  required  to  be 
inserted  in  tlie  writ,  or  filed  at  the  time  of 
commencing  the  action,  as  is  the  case  in 
several  of  the  United  States,  this  averment 
is  unnecessary. 

1  2  Stark  Ev.  203  ;  Chitty  &  Hulme  on 
Bills,  p.  616. 

2  Piersonv.  Hutchinson,  2  Campb.  211 ; 
Hansard  v.  Robinson,  7  B.  &  C.  90 ;  9  D. 
&  K.  860;  Ry.  &  M.  404,  n. ;  Poole  v. 
Smith,  Holt's  Cas.  144  :  Rowley  v.  Ball,  3 
Co  wen,  303  ;  Story  on  Bills,  §§  448,  449  ; 
Ramuz  v.  Crowe,  11  Jur.  715;  1  Exch. 
R.  167  ;  in  which  the  cases  are  examined, 
Hansard  v.  Robinson  confirmed,  and  the 
question  put  at  rest. 

3  Davis  V.  Dodd,  4  Taunt.  602 ;  Poole 
V.  Smith,  Holt's  Cas.  144 ;  Rowley  v.  Ball, 
3  Cowen,  303 ;  Mayor  v.  Johnson,  3 
Campb.  324  ;  Bullet  v.  Bank  of  Penn- 
sylvania, 4  Wash.  C.  C.  R.  172;  Cham- 
pion V.  Terry,  3  B.  &  B.  295. 

*  Ibid. ;  Kirby  v.  Sisson,  2  "Wend.  550, 
5  Pierson  r.  Hutchinson,  2  Campb.  211  ; 
Swift  V.  Stevens,  8  Conn.  431  ;  Anderson 
V.  Robson,  2  Bay,  R.  495  ;  Rowley  v.  Ball, 
3  Cow.  303.  The  destruction  of  the  bill 
may  be  inferred  from  circumstances.  Pin- 
tard  V.  Tackington,  10  Johns.  104 ;  Pea- 
body  V.  Denton,  2  Gal.  351  ;  Hinsdale  v. 
Bank  of  Orange,  6  Wend.  378,  379. 

«  Long  V.  Bailie,  2  Campb.  214 ;  Ex 
parte  Green  way,  6  Ves.  812. 


140  LAW   OF  EVIDENCE.  [PART  IV. 

indorsed,^  or  has  been  given  up  by  mistake,^  the  plaintiff  has  been 
permitted  to  recover,  upon  the  usual  secondary  evidence.  So,  if 
the  bill  was  lost  after  it  had  been  produced  in  court,  and  used  as 
evidence  in  another  action.^  By  cutting  a  bill,  or  a  bank-note,  into 
two  parts,  as  is  often  done  for  safety  of  transmission  by  post,  its 
negotiability,  while  the  parts  are  separate,  is  destroyed ;  in  which 
case  the  holder  of  one  of  the  parts,  on  proof  of  ownership  of  the 
whole,  has  been  held  entitled  to  recover.*  If  the  loss  of  a  promis- 
sory note  is  proved,  the  plaintiff,  if  he  is  the  payee,  may  recover, 
unless  it  is  affirmatively  proved  to  have  been  negotiable  ;  for,  in 
the  absence  of  such  proof,  the  court  will  not  presume  that  it  was 
negotiable.^ 

§  157.  This  amount  of  proof  is  incumbent  on  the  plaintiff,  in 
order  to  recover  his  damages,  whatever  may  be  the  point  in  issue. 
But  where  the  general  issue  is  pleaded,  the  plaintiff  must  also  prove 
every  other  material  averment  in  his  declaration.  If  the  issue  is 
upon  a  point  specially  pleaded,  all  other  averments  are  admitted, 
and  the  evidence  is  confined  to  that  point  alone. 

§  158.  After  the  note  or  bill  is  produced,  the  next  step  is  to 
prove  the  signature  of  the  defendant,  where,  by  the  nature  of  the 

1  Rolt  V.  Watson,  4  Bing.  273;  12  the  drawer  of  the  bill,  had  prevented  thft 
Moore,  510,  S.  C.  indorsee  from    obtaining  the    money  of 

2  Eagle  Bankv.  Smith,  5  Conn.  71.  the  drawee,  by  refusing  to  enable  liim  so 
8  Eenner  17.  Bank  of  Columbia,  9  Wheat,     to  do.     Murray  v.  Carrett,  3  Call,  R.  373, 

396.  This  may  have  been  decided  upon  And  in  other  cases,  the  owner  of  a  biU, 
the  ground  that  the  loss  was  by  the  officers  lost  before  its  maturity,  has  been  permitted 
of  the  court,  while  tlie  document  was  in  to  recover  at  law,  on  giving  the  defendant 
the  custody  of  the  law.  The  same  rule  an  indemnity ;  Miller  v.  Webb,  8  Louis, 
has  been  applied,  where  the  bill  has  been  R.  516;  Lewis  t'.  Peytarin,  4  Martin,  4, 
used  before  commissioners  in  bankruptcy.  N.  S. ;  —  but  if  lost  after  it  had  become 
Poorley  v.  Millard,  1  C.  &  J.  411;  1  due,  and  had  been  protested,  no  indemnity 
Tyrwh.  331,  S.  C.  In  the  case  of  a  lost  was  held  requisite.  Brent».  Erving,  3  Mar* 
bill,  the  general  and  appropriate  remedy  tin,  303,  N.  S.  [*  See  also  3  Kent,  Comm. 
is  in  equity,  upon  the  offer  of  a  bond  of  104,  and  cases  cited  by  Comstock,  editor.] 
indemnity.  1  Story  on  Eq.  Jurisp.  §§  81,  *  Hinsdale  v.  Bank  of  Orange,  6  Wend. 
82;  JS'x/jarte  Greenway,  6  Ves.  812  ;  Pier-  378;  Bullet  v.  Bank  of  Pennsylvania,  2 
Sony.  Hutchinson,  2  Campb.  211  ;  Mossop  Wash.  C.  C.  R.  172;  Patton  v.  State 
V.  Eadon,  16  Ves.  430;  Cockell  v.  Bridg-  Bank,  2  N.  &  McC.  464;  Bank  of  Unit- 
man,  4  Bcav.  499.  In  England,  however,  ed  States  v.  Sill,  5  Conn.  106;  Earmers' 
by  Stat.  9  &  10  W.  4,  c.  17,  §  3,  if  any  in-  Bank  v.  Reynolds,  5  Rand.  186. 
land  bill  bo  lost  or  miscarried  within  the  ^  McNair  v.  Gilbert,  3  Wend.  344  ;  Pin- 
time  limited  for  p.iymcnt,  the  drawee  is  tard  v.  Tackington,  10  Johns.  104,  105. 
bound  to  give  another  of  the  same  tenor  to  See  further,  Bayley  on  Bills,  413-418. 
the  holder,  who,  if  required,  must  give  In  a  suit  by  the  payee  against  the  nutker 
security  to  indemnify  him  in  case  the  lost  of  a  promissory  note,  if  the  note  he  so 
bill  should  be  found.  But  in  some  cases  mutilated  that  the  ))ayee's  name  i.s  illegi- 
the  courts  of  law  have  sustained  an  action  ble  ;  the  plaintiff  must  prove  that  the  note 
by  the  payee,  for  the  original  consideration  was  made  to  him,  and  was  in  his  ])Osses. 
where  the  note  or  bill  was  not  received  in  sion  at  the  commencement  of  the  suit; 
extinguishment  of  the  original  contract;  and  that  it  was  mutilated  under  ci re um- 
—  Rolt  V.  Watson,  2  Bing.  273  ;  —  or,  stances  not  affecting  its  validity.  Hatch  v 
upon  the  ground  that  the  defendant,  being  Dickinson,  7  Blackf.  48. 


PART  IV.J        BILLS   OF  EXCHANGE  AND   PROiHSSORY  NOTES.  141 

action,  or  by  the  state  of  the  pleadings,  or  the  course  of  the  court, 
this  proof  may  be  required.^  If  the  signature  is  not  attested,  the 
usual  method  of  proof  is  by  evidence  of  the  person's  handwriting, 
or  of  his  admission  of  the  fact.^  If  it  is  attested  by  a  subscribing 
witness,  that  witness  must  be  produced,  if  he  is  to  be  had,  and  is 
competent.^  Some  evidence  has  also  been  held  requisite  of  the 
identity  of  the  party  with  the  person  whose  signature  is  thus 
proved  ;  but  slight  evidence  to  this  point  will  suffice.*  If  it  is 
alleged  in  the  declaration,  that  the  bill  was  drawn,  or  accepted,  or 
that  the  note  was  made  by  the  party,  "  his  own  proper  hand  being 
thereunto  subscribed,"  it  has  been  thought,  that  this  unnecessary 
allegation  bound  the  plaintiff  to  precise  proof,  and  that  if  the  sig- 
nature appeared  to  have  been  made  by  another,  by  procuration, 
it  was  a  fatal  variance.^  But  the  weight  of  later  authority  is  oth- 
erwise ;  and  accordingly  it  is  now  held,  that  these  words  may  be 
rejected  as  surplusage.^  If  the  instrument  was  executed  by  an 
agent,  his  authority  must  be  proved,  together  with  his  handwrit- 
ing ;  and  if  he  was  authorized  by  deed,  the  deed  must  be  pro- 
duced, or  its  absence  legally  accounted  for,  and  its  existence  and 
contents  shown  by  secondary  evidence."     If  the  instrument  is  in 

1  See  supra,  §  16.  ^2  Stark.  Ev.  203  ;  2  Phil.  Ev.  4. 

2  Where  the  plaintiff  relies  on  the  de-  ^  This  point  was  first  raised  before  Ld; 
fendant's  verbal  admission  that  he  made  Ellenboroiigh,  in  1804,  in  Levey  ?>.  Wil- 
the  note  in  question,  the  identity  of  the  son,  5  Esp.  180,  when  he  held  it  matter  of 
note  referred  to  must  be  satisfactorily  es-  substance,  and  nonsuited  the  plaintiff  for 
tablished.  Therefore,  where  the  agent  of  the  variance.  Afterwards,  in  1809,  in 
the  holder  of  a  note,  payable  to  bearer,  Jones  v.  Mars  et  al.,  2  Campb.  305,  which 
called  on  the  defendant  with  the  alleged  was  against  partners,  as  drawers  of  a  bill, 
note  in  his  pocket,  which  he  did  not  ex-  "  their  own  haijds  being  thereto  sub- 
hibit,  but  told  him  he  had  a  note  for  that  scribed,"  and  the  proof  being,  that  the 
amount  against  him,  and  requested  pay-  name  of  their  firm  of  "Mars  &  Co."  was 
ment  of  it  for  the  plaintiff;  and  the  de-  subscribed  by  one  of  them  only,  the  same 
fendant  replied  that  he  had  given  such  a  learned  judge  refused  to  nonsuit  the  plain- 
note,  and  would  pay  it  if  the  plaintiff  tiff  for  that  cause.  In  the  following  year, 
would  make  a  small  deduction,  and  in-  the  original  point  being  directly  before 
dulge  him  as  to  time  ;  it  was  held,  that  him  in  Helmsley  v.  Loader,  2  Campb. 
the  note  declared  on  and  produced  at  the  450,  he  said  it  would  be  too  narrow  a  con- 
trial  was  not  sufficiently  identified  with  struction  of  the  words  "  own  hands,"  to 
that  to  which  the  admission  referred,  and  require  that  the  name  should  be  written 
that  the  proof  was  insufficient.  Palmer  i;.  by  the  party  himself  And  of  this  opin- 
Manning,  4  Denio,  131.  ion  was  Ld.  Tenterden,  who  accordingly 

^  See  inite.    Vol.  1,  §  569-574,  where  held  the  words  mere  surplusage,  in  Booth 

the  proof  of  the  execution  of  instruments  v.  Grove,  1  M.  &  Malk.  182  ;  3  C.  &  P. 

is  more  fully  treated.  335,   S.  C.      See   also   Chitty   &  Hulme 

*  See   ante,   Vol.  1,  §  575;  Nelson    v.  on  Bills,  pp.  570,  627  (9th  edit.).     If  the 

Whittall,  1  B.  &  Aid.  19;  Page  v.  Mann,  party   signed   by   the  initials  only  of  his 

1  M.  &  M.    79 ;  Mead  v.  Young,  4   T.  R.  name,  intending  thereby  to  be  bound,  it  it 

28  ;  Bulkeley  v.  Butler,  2  B.  &  C.  434  ;  sufficient.     Palmer  v.  Stephens,  1  Denio. 

Chitty  &   Hulme  on  Bills,  641,642    (9th  R.  471. 

edit).     Sometimes  identity  of  name  will  ''  Johnson  v.  Mason,  1  Esp.  89. 
suffice.    Roden  v.  Ryde,  4  Ad.  &  El.  N. 
S.  630  -  634 


X42  LAW   OF  EVIDENCE.  [PART  IV. 

the  hands  of  the  adverse  party,  or  his  agent,  notice  must  be  given 
to  the  party  to  produce  it.^ 

§  159.  If  there  are  several  signatures,  they  must  all  be  proved  ; 
and  an  admission  by  one  will  not,  in  general,  bind  the  others.^ 
But  where  the  acceptors  are  partners,  it  will  suffice  to  prove  the 
partnership,  and  the  handwriting  of  the  partner  who  wrote  the 
signature. 3  If  the  signature  is  not  attested  by  a  subscribing  wit- 
ness, the  admission  of  the  party  is  sufficient  proof  of  it ;  otherwise 
the  subscribing  witness  must  bo  called  ;  *  but  the  admission  of  the 
party  that  the  signature  is  his,  if  not  solemnly  made,  does  not 
estop  him  from  disproving  it.^  Payment  of  money  into  court,  par- 
tial payments  made  out  of  court,  promises  to  pay,  a  request  of  for- 
bearance, and  for  further  time  of  payment,  and  a  promise  to  give 
a  new  security,  have  severally  been  deemed  sufficient  to  dispense 
with  proof  of  the  signature.^  A  promise  by  the  maker  to  pay  a 
note  to  an  indorsee,  made  after  it  fell  due,  has  been  held  an  ad- 
mission not  only  of  his  own  signature,  but  of  all  the  indorsements, 
superseding  the  necessity  of  further  proof.'^ 

§  160.  The  bill  or  note  produced  must  conform  in  all  respects 
to  the  instrument  described  in  the  declaration ;  for  every  part  of 
a  written  contract  is  material  to  its  identity,  and  a  variance  herein 
will  be  fatal.^  But  where  it  is  alleged  that  the  party  on  such  a 
day  made  his  promissory  note,  but  it  is  not  alleged  that  the  note 

1  See  ante,  Vol.  1,  §  560-563.  Notice  ^  Hall  v.  Huse,  10  Mass.  39;  Salem 
to  the  agent  is  unnecessary.  Burton  v.  Bank  v.  Gloucester  Bank,  17  Mass.  1; 
Payne,  2  C.  &  P.  520.  ante,  Vol.  1,  §§  27,  186,  205,  572. 

2  Sec  ante,  Vol.  1,  §  174  ;  Gray  v.  Pal-  ^  See  ante,  Vol.  1,  §  205  ;  Israel  v.  Beu- 
mer,  1  Esp.  135  ;  Sheriff  v.  Wilkes,  1  East,  jamin,  3  Campb.  40  ;  Bosanquet  v.  Ander- 
48  ;  Carvick  v.  Vickery,  2  Doug.  653,  note,  son,  6  Esp.  43  ;  Helmsley  v.   Loader,   2 

3  See  ante,  Vol.  1,  §  177.     As  to  admis-  Cainpb.  450  ;  Jones  v.  Morgan,  Id.  474. 
sion  by  partners,  see  ante,  Vol.  1,  §  112,  ^  Keplinger  v.  Griffith,  2  Gill  &  Johns, 
and  note.     In  the  modern  English   prac-  296. 

tice,    under   the   issue   of  non   acceperimt,  ^  See  Vol.  1,  §§  56,  61,  63,   64;  and 

though  it  be  shown,  in  defence,  that  the  supra,  §§  11  6,  11  rf,  as  to  the  law  of  vari- 

accci)tance   was  given  by  one   partner  in  ance.     A  note  made  payable  to  the  mak- 

fraud  of  the  firm,  vet  such  proof  does  not  er's  own  order,   and  by  him  indorsed  in 

require  the  plaintiff  to  show  that  he  gave  a  blank,  will  support  a  count  on  such  a  note 

consideration  for  the  bill,  unless  the  evi-  as  made  payable  to  the  bearer.     Hooper  v. 

donee  of  the  defendants  affects  him  with  Williams,  12  Jur.  270  ;  Masters  v.  Baretto, 

knowledge   of    the   fraud.      Musgrave    v.  8  M.  G.  &  S.  433.     But  prior   to   its  in- 

Drake,   5  Ad.  &  El.  185,  N.   S.     In  the  dorsement,   it   is  not  a  promissory   note, 

American  courts,  where  the  older  rules  of  within  the  St.  3  &  4  Anne,  c.  9.     Browu 

practice  arc  still  observed,  it  is  otherwise,  v.  De  Winton,  12  Jur.  678.     [*  So  lield  lu 

See  infra,   §    172.      A   signature   by   the  the  Court  of  Exchequer,  Flight  w.  Maclean, 

names"  and  surnames  of  the  several  mem-  16  Mees.  &  W.  51  ;  Hooper  v.  Williams,  2 

hers  of  the  firm,  is  sufficient  to  charge  the  Exch.    13;    also    in    Woods    t;.    llidley, 

partnership.     Norton   v.    Seymour,  3   M.  11  Humph.  194 ;  but  in  Woods  u.  Mvtton, 

G.  &  S.  792      Blodgett  v.  Jackson,  40  N.  10  Ad.   &  El.  N.  S.  805,  it  was  held  that 

g_  21.  such  an  instrument  was  a  promissory  not* 

*  S«e  ante,  Vol.  1,  §  569-572.  before  indorsement.] 


PART  IV.]       BILLS   OF  EXCHANGE   AND  PROMISSORY  NOTES.  143 

lore  date  on  that  or  any  other  day,  this  is  not  considered  as  giving 
a  date  to  the  note,  so  as  to  cause  a  variance  by  proof  of  a  note 
bearing  date  on  a  different  day.^  If  there  be  any  alteration  appar- 
ent on  the  instrument,  tending  to  render  it  suspected,  the  plaintiff 
must  be  prepared  with  evidence  to  explain  it.^  And  if  the  plain- 
tiff sue  as  payee  of  a  bill  or  note,  which  purports  to  be  payable  to 
a  person  of  a  different  name,  this  also  may  be  explained  by  evi- 
dence aliunde,  if  the  record  contains  the  proper  averments.^  So, 
if  the  drawer  and  drawee  of  a  bill  are  of  the  same  name,  and  the 
record  does  not  assert  that  they  are  two  persons,  parol  evidence  is 
admissible  that  they  are  one  and  the  same  person,  and  of  course 
that  the  bill  amounts,  in  effect,  to  a  mere  promissory  note.^  If  the 
action  is  by  the  indorsee  against  the  indorser  of  a  bill  dishonored 
on  presentment  for  payment,  the  allegation  of  its  acceptance  is  not 
descriptive  of  the  instrument,  but  is  wholly  immaterial,  and  there- 
fore need  not  be  proved.^  And  in  an  action  against  the  acceptor,  if 
his  acceptance  be  unnecessarily  stated  to  have  been  made  to  pay 
the  bill  at  a  particular  place,  and  there  is  an  averment  of  present- 
ment there,  this  averment  also  is  immaterial,  and  need  not  be 
proved.^  If  the  currency  mentioned  in  the  bill  is  foreign,  and  its 
equivalent  value  has  not  been  established  and  declared  by  law,  the 
value  will  of  course  be  alleged  in  the  declaration,  and  must  be 
proved,  including  the  rate  of  exchange  when  the  bill  became  due ; 
together  with  the  duration  of  the  usances,  if  any  are  stated  in  the 
bill. 

§  161.  Secondly,  the  plaintiff  must  show  how  the  defendant  was 
a  parti/  to  the  hill  or  note,  and  the  nature  of  his  contract.  If  the 
action  is  against  the  acceptor,  the  acceptance  must  be  proved. 
And  an  acceptance,  where  it  is  not  otherwise  qualified  or  restrained 
by  the  local  law,  may  be  either  verbal  or  in  writing ;  or  may 
be  either  by  express  words,  or  by  reasonable  implication.'''  By 
the  French  law,  every  acceptance  must  be  in  writing.  By 
the  English  law,  the  acceptance  of  a  foreign  bill  may  be  verbal 

i  Smith  V.  Lord,  9  Jur.  450;  2Dowl.  &  476 ;  Bluett  v.  Middleton,  1  DowL  &  L. 

L.  579,  S.  C.  376 ;  Masters  v.  Barrets,  2  C  &  K.  715. 

2  See  Vol.  1,  §  564.  6  Tanner  v.  Bean,  4  B.  &  C.  312,  over- 

8  Willis  V.  Barret,  2  Stark.  E.  29.  ruling  Jones  v.  Morgan,  2  Campb.  474,  as 

*  Roach  V.  Ostler,  1  Man.  &  Ry.  120.  to  this  point. 

If  the  declaration  is  on  a  bill  of  exchange,  ^  Freeman  v.  Kennell,  Chitty  &  Hulme 

as  drawn  by  S.  S.  and  made  payable  "  to  on  Bills,  p.  616. 

S.  S.  or  order,"  and  the  bill  produced  in  ">  Story  on  Bills,  §§  242,  243  ;  [Bamet 

evidence  reads,  "  Pay  to  my  order,"  it  is  v.  Smith,  10   Foster,  256;]  [*  Arnold  v. 

no  variance.     Smith  v.  McCIure,  5  East,  Sprague,  34  Vt.  405.] 


144 


LAW    OF   EVIDENCE. 


[part  IV. 


or  in  writing ;  but  that  of  an  inland  bill  must  be  only  in  writing, 
on  the  bill  itself.  In  all  other  cases  an  acceptance  by  letter 
or  other  writing  is  good ;  though  it  is  usually  made  on  the  bill.^ 
If  the  acceptance  is  by  an  agent,  his  authority,  as  we  have 
seen  in  other  cases,  must  be  shown. ^  Where  the  action  is  against 
some  of  several  acceptors  or  makers,  the  others  are  competent 
witnesses  for  the  plaintiff,  to  prove  the  handwriting  of  the 
defendant.^  So,  if  the  action  is  against  partners,  after  proof 
of  the  partnership,  the  admissions  of  one  of"  the  firm  are  good, 
against  all.*  A  signature  by  the  names  and  surnames  of  the 
respective  partners  is  sufficient  to  charge  the  partnership ;  and  it 
seems  that  such  signature  made  by  one  of  the  partners  will  suf- 
fice.^ If  the  bill  is  drawn  payable  after  sight,  it  is  in  general 
necessary  to  prove  the  precise  time  of  acceptance;  but  if  the 
acceptance  is  dated,  this  is  sufficient  evidence  of  the  time ; 
and  though  the  date  is  in  a  hand  different  from  that  of  the 
acceptor,  it  will  be  presumed  to  have  been  written  by  his  author- 
ity, by  a  clerk,  according  to  the  usual  course  of  business.^    If 


1  Story  on  Bills,  §  242  ;  Chitty  &  Hulrae 
on  Bills,  p.  314-333  (9tli  ed.).  A  prom- 
ise to  accept  an  existing  bill,  specifically  de- 
scribed, is  a  good  acceptance;  Grant  v. 
Hunt,  1  M.  G.  &  S.  44  ;  10  Jur.  228  ;  Story 
on  Bills,  §  244  ;  but  whether  a  promise  to 
accept  a  non-existing  bill,  to  be  drawn  at  a 
future  day',  is  a  good  acceptance,  is  a  point 
not  universally  agreed.  As  between  the 
drawee  and  a  third  person,  who  has  taken 
the  bill  upon  the  fiiith  of  the  promise  to 
accept  it,  the  doctrine  was  for  a  long  time 
maintained  in  England,  that  it  amounted 
to  an  acceptance  of  the  bill.  But  this 
doctrine  has  recently  been  re-examined  and 
explicitly  overruled,  in  The  Bank  of  Ire- 
land V.  Archer,  II  M.  &  W.  383.  "But 
the  rule,"  says  Mr.  Justice  Story,  "  as  for- 
merly held,  always  included  the  qualilica- 
tion,  that  tiie  paper,  containing  the  prom- 
ise, should  describe  the  bill  to  be  drawn,  in 
terms  not  to  be  mistaken,  so  as  to  identify 
and  distinguish  it  from  all  others ;  that 
the  bill  should  be  drawn  within  a  reasona- 
ble time  after  the  paper  was  written  ;  and 
it  should  be  received,  by  the  person  taking 
it,  upon  the  faith  of  the  promised  accept- 
ance;  and,  if  cither  of  these  circumstances 
should  fail,  the  promise  would  not  amount 
to  an  acceptance.  Under  these  qualifica- 
tions, the  rule  seems  to  be  firmly  estab- 
lished in  America  upon  the  footing  of  the 
old  autfioritics.  But  the  rule  is  applicable 
only  to  the  cases  of  bills  ])ayable  on  de- 
mand, or  at  a  fixed  time  after  date,  and 


not  to  bills  payable  at  or  after  sight ;  for 
it  is  obvious,  that,  to  constitute  an  accept- 
ance in  the  latter  cases,  a  presentment  is 
indispensable,  since  the  time  that  the  bill 
is  to  run  cannot  otherwise  be  ascertained." 
Story  on  Bills,  §  249.  And  see  Chitty  & 
Hulme  on  Bills,  pp.  284,  285  -  297  ;  Ulster 
County  Bank  v.  MacFarlan,  3  Hill  (N.  Y.) 
K.  432. 

2  Supra,  §  .59-68. 

8  York  V.  Blott,  5  M.  &  S.  71 ;  Chitty 
&  Hulme  on  Bills,  p.  627  (9th  ed.).  See 
ante,  Vol.  1,  §  399  ;  Poole  v.  Palmer,  9  M. 
&  W.  71. 

4  See  ante,  Vol.  1,  §§  172,  174, 177. 

s  Norton  v.  Seymour,  3  M.  G.  &  Sc. 
792. 

6  Glossop  V.  Jacob,  4  Campb.  227  ;  1 
Stark.  R.  69,  S.  C ;  Chitty  &  Hulme  on 
Bills,  p.  292  (9th  ed.).  An  acceptance  by 
the  wife  of  tlie  drawee,  by  writing  her  own 
name  on  the  bill,  is  sufficient  to  bind  him 
as  acceptor,  if  she  had  authority  to  accept 
the  bill.  Lindus  v.  Bradwell,  17  Law 
Jour.  121;  9  Law  Mag.  N.  S.  146;  12 
Jur.  230  ;  5  M.  G.  &  Sc.  583.  The  mere 
production  of  a  bill,  with  formal  proof  of 
the  acceptor's  handwriting,  is  prima  facie 
evidence  that  the  hill  was  accepted  during 
its  currency,  and  within  a  reasonable  time 
of  its  date,  such  being  the  regular  course 
of  business.  The  reasonableness  of  the 
time  depends  on  the  relative  places  of 
abode  of  the  parties  to  the  bill.  Roberts 
V.  Bethell,  14  Eng.  Law  &  Eq.  R.  218. 


PART  IV.J       BILLS   OF  EXCHANGE   AND   PROMISSORY  NOTES.  145 

the  acceptance  was  hy  parol,  the  person  who  heard  if  must  be 
called ;  and  if  the  answer  relied  on  was  given  by  a  clerk,  his 
authority  to  accept  bills  for  his  master  must  also  be  proved.^ 

§  162.  In  an  action  against  the  drawer,  maker,  or  indorser, 
of  a  bill  or  note  the  same  proof  of  signature,  and  of  agent's 
authority,  is  requisite,  as  in  the  case  of  an  acceptor.^ 

§  163.  In  the  third  place,  the  plaintiff  must  prove  his  interest 
in  the  bill  or  note,  or  his  title  to  sue  thereon.  Where  the  actiot 
is  between  the  immediate  parties  to  the  contract,  as  payee  and 
maker  of  a  note,  or  payee  and  acceptor  of  a  bill,  the  plaintiff, 
ordinarily,  has  only  to  produce  the  instrument  and  prove  the 
signature.^  But  where  the  plaintiff  was  not  an  original  party 
to  the  contract,  but  has  derived  his  title  by  means  of  some 
intermediate  transfer,  the  steps  of  this  transfer  become,  to  some 
extent,  material  to  be  proved.  The  extent  to  which  the  proof 
must  be  carried  will  generally  depend  upon  the  extent  of  the 
allegations  in  the  declaration.  Thus,  if  a  note  made  payable 
to  A.  B.  or  bearer,  is  indorsed  in  blank  by  the  payee,  and  the 
holder,  in  an  action  against  the  maker,  declares  upon  the  indorse- 
ment, he  must  prove  it ;  although  the  allegation  of  the  indorse- 
ment was  unnecessary  ;  for  he  might  have  sued  as  bearer  only, 
in  which  case  the   indorsement  needs   not   be   proved.*     If  the 

1  Sawyer  v.  Kitchen,  1  Esp.  R.  209.  §§  569  -  575.  And  as  to  admissions  by 
As  to  what  conduct  or  words  amount  to  a  the  party,  or  by  one  of  several  parties,  see 
verbal  acceptance,  see  Chitty  &  Hulme  on  ante,  Vol.  1,  §§  27,  172  -  205.  [A  Mutual 
Bills,  (ip.  288,  289  (9th  ed.)  ;  Story  on  Fire  Insurance  Company,  in  an  action 
Bills,  §§  243-247.  [Where  a  note,  paya-  brought  by  them  against  one  of  their 
ble  on  time,  is  indorsed  and  the  indorse-  members,  to  recover  assessments  on  a  de- 
ment is  not  dated,  and  there  is  no  evidence  posit  note,  must  prove  not  only  the  actual 
to  show  when  it  was  made,  the  presump-  assessments,  but  must  produce  proper  evi- 
tion  is  that  the  transfer  of  the  note  was  dence  of  their  act  of  incorporation  and  by- 
made  at  or  soon  after  its  date.  Balch  v.  laws,  and  show  that  tlie  assessments  are 
Onion,  4  Cush.  559.  In  an  action  by  the  made  in  accordance  therewith.  Atlanti*. 
payee  of  a  negotiable  note  against  two  or  Mut.  Pire  Ins.  Co.  v.  Fitzpatrick,  2  Gray, 
more  persons  as  joint  pi-omisors,  where  one  279.  And  if  the  Mutual  Insurance  Com- 
of  the  defendants'  names  is  on  the  face  of  pany  be  a  foreign  one,  it  must,  in  such  an 
the  note,  and  the  names  of  the  others  are  action,  show  affirmatively  that  the  contract 
on  its  back,  witliout  date  and  in  blank,  the  of  insurance,  which  is  the  consideration  of 
legal  presumption  is  that  all  the  names  the  note,  is  a  valid  contract  according  to 
were  signed  at  the  same  time.  Benthall  the  laws  of  the  State  in  which  it  is  made. 
V.  Judkins.  1.3  Met.  265.  The  legal  pre-  Jones  v.  Smith,  3  Gray,  501.  But  if  the 
sumption  is  that  a  note  has  been  trans-  action  on  such  note  is  brought  by  the  in- 
ferred in  the  usual  course  of  business,  for  dorsee,  and  he  is  a  bona  fide  holder  without 
a  valuable  consideration,  and  before  it  was  notice,  a  compliance  by  the  company  with 
dishonored.  Andrews  v.  Chadbourne,  19  the  requisitions  of  law  may  be  presumed, 
Barb.  (N.  Y.)  147;  Leland  v.  Famham,  in  the  absence  of  evidence  to  the  contrary. 
25  Vt.  553.]  Ibid.  W^illiams  v.  Cheney,  lb.  215.] 

2  As  to  the  proof  of  handwriting,  see  ^  King  i'.  Miison,  2  Campb.  5.  See  also 
ante,   Vol.   1,  §§  576-581.     As  to  proof  Peacock  u.  Rhodes,  2  Doug.  633. 

by  the  subscribing  witness,  see  an<e,  VoL  1,         *  Waynam    v.    Bend,    1    Campb.    170. 
VOL.  II.  10 


146 


LAW   OF  EVIDENCE. 


[part  IV. 


name  of  the  payee  in  the  bill  or  note  was  left  blank,  and  the 
plaintiff  has  filled  it  by  inserting  his  own  name,  he  must  show 
either  that  he  was  intended  as  the  original  payee,  or  that  the 
bill  came  regularly  into  his  possession.^  If  there  are  several 
persons  of  the  same  name  with  the  payee,  the  possession  of  the 
bill  or  note  is  prima  facie  evidence  that  the  plaintiff  was  intended  ; 
but  if  there  be  two,  father  and  son,  in  the  absence  of  other  proof, 
it  will  be  presumed  that  the  father  was  intended.^  And,  whers 
the  bill  or  note  is  made  payable  to  a  firm  by  the  name  of  A. 
&  Co.,  the  payees,  in  a  suit  in  their  own  names,  must  prove  that 
they  were  the  persons  who  composed  the  firm.^ 

§  164.  But  though  the  plaintiff  must  furnish  the  proof  of 
his  own  title,  yet  this  proof  may  consist  of  admissions  by  the 
defendant,  apparent  upon  the  bill  or  note.  For  every  person 
giving  currency  to  commercial  paper  is  understood  thereby  to 
assert  the  genuineness  of  all  such  signatures,  and  the  regularity 
of  all  such  previous  transactions  as  he  was  bound  to  know. 
Thus,  the  acceptor  of  a  bill,  after  sight,  whether  in  general, 
or  for  honor,  or  supra  protest^  by  the  act  of  acceptance,  admits 


And  see  ante,  Vol.  1,  §  60.  If  he  sues  as 
bearer  only,  the  indorsement  need  not  be 
proved.  Wilbour  v.  Turner,  5  Pick.  526. 
See  also  Bhikely  v.  Grant,  6  Mass.  386. 
And  possession  of  a  negotiated  bill  or  note 
is  prima  facie  evidence  of  title  in  the  holder, 
on  proof  of  the  indorsements.  SeeMohtam 
V.  Mills,  1  Sandf  S.  0.  R.  37.  Every  in- 
dorsement of  a  promissory  note  will  be 
presumed  to  have  been  made  at  the  place 
of  makin»  the  note,  until  the  contrary 
appeai-s.  Duncan  v.  Sparrow,  3  Rob. 
(Louis.)  R.  167.  [In  an  action  on  a  note 
payable  to  a  person  named,  or  bearer,  when 
the  plaintiff  briiig-s  the  Jiote  declared  upon 
in  his  hand  and  offers  it  in  evidence,  this 
is  not  only  evidence  that  he  is  the  bearer, 
but  also  raises  a  presumption  of  fact  that 
he  is  tlie  owner ;  and  this  will  stand  as 
proof  of  title  until  other  evidence  is  pro- 
duced to  control  it.  And  where  the  note 
is  payable  to  a  corporation,  of  which  the 
plaintiff  is  the  general  agent,  and,  as  such, 
has  the  custody  of  all  their  notes,  this  fact 
alone  is  not  sufficient  to  rebut  the  general 
presumption,  that  he  is  the  owner.  Pettee 
V.  Prout,  3  Gray,  .502.  Where  a  piomis- 
sory  note  is  indorsed  in  blank,  and  the 
genuineness  of  the  signature  and  indorse- 
ments is  admitted,  and  the  note  is  produced 
by  the  plaintiff  at  the  trial,  it  is  no  defence 
to  an  action  thereon  to  offer  to  sliow  that 
the  plaintiff  never  owned  the  note,  nor  had 
it  in  his  possession,  nor  employed  counsel 


to  prosecute  the  action,  nor  had  any  inter- 
est in  the  suit.  Way  v.  Richardson,  lb. 
412.] 

1  Crutchley  v.  Mann,  5  Taunt.  .529  ;  1 
Marsh.  29,  S.  C.  Where  the  payee  in- 
dorsed the  note,  but  did  not  deliver  it,  and 
afler  his  death  it  was  delivered  by  tlie  ex- 
ecutor to  the  plaintiff,  it  was  held  that  the 
plaintiff  had  no  title  to  sue  on  the  note. 
Bromage  v.  Lloyd,  1  Exch.  R.  32. 

-  Sweeting  v.  Fowler,  1  Stark.  R.  106  ; 
Stebbing  v.  Spicer,  8  M.  G.  &  S.  827. 
Ante,  Vol.  1,  §  838,  n.  [In  some  States,  if 
a  person,  not  an  indorsee,  places  his  name 
in  blank  on  a  note,  before  it  is  negotiated 
or  passed,  and  so  before  it  has  acquired 
the  character  of  a  contract,  the  holder  may 
fill  up  the  blank  so  as  to  charge  such  in- 
dorsee as  a  joint  and  several  promisor  and 
surety.  The  fact  of  intrusting  such  bl.ank 
with  another  is  evidence  of  an  authority 
to  fill  up  something  over  it,  and  the  actual 
authority  to  fill  it  up  in  any  particular 
form  may  be  proved  by  evidence  aliunde. 
Riley  v.  Gerrish,  9  Gush.  194  ;  Union  Bank 
of  VVevmouth  &  B.  v.  Willis,  8  Met.  504 ; 
Bcnthall  v.  Judkins,  13  Met.  265  ;  Mccor- 
ney  v.  Stanley,  8  Gush.  85  ;  Bryant  v. 
Eastman,  7  lb.  Ill;  Howe  i>.  Merrill,  5 
lb.  80 ;  Story,  Prom.  Notes,  §§  59,  472  - 
480  ;  Lowell  v.  Gage,  38  Maine,  35  ;  Sar- 
gent V.  Robbins,  19  N.  H.  572.] 

2  Waters  v.  Paynter,  Ghitty  &  Ilulmo 
on  Bills,  637.  note  (1,)  (9th  c.lit  ). 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROmSSORY  NOTES. 


147 


that  the  drawer's  signature  is  genuine,  that  he  had  a  right  to 
draw,  that  he  was  of  proper  age,  and  otherwise  qualified  to 
contract,  and  that  he  bears  the  character  in  which  he  assumes  to 
draw,  such  as  executor,  partner,  and  the  like.  But  there  is  no 
implied  admission,  in  such  case,  of  the  genuineness  of  the  signa- 
ture of  the  payee,  or  of  any  other  indorser.^  So,  also,  the  indorse 
ment  of  a  bill  or  note  is  an  admission  of  the  genuineness  of  the 
signature  of  the  drawer,  or  maker .^  And  if  the  bill  is  drawn  by 
•procuration,  the  acceptance  admits  the  procuration.^ 

§  1G5.  These  admissions,  however,  by  the  act  of  acceptance 
or  indorsement,  are  strictly  limited  to  those  things  which  the, 
party  was  bound  to  know.  Therefore,  though  a  bill  is  drawn 
payable  to  the  drawer's  own  order,  and  is  indorsed  with  the 
same  name,  whether  by  procuration  or  not,  yet  the  acceptance  is 
not  in  itself  an  admission  of  the  indorsement,  but  only  of  the 
drawing;*  though  probably  the  jury  would  be  warranted  in 
inferring  the  one,  from  the  admitted  genuineness  of  the  other.^ 


1  "Wilkinson  v.  Liitwidge,  1  Stra.  648  ; 
Smith  V.  Scare,  Bull.  N.  P.  270  ;  Porthouse 
D. -Parker,  1  Campb.  82  ;  Taylor  y.  Croker, 
4  Esp.  187  ;  Bass  i'.  Clive,  4  M.  &  S.  13  ; 
Vere  v.  Lewis,  3  T.  R.  182  ;  Parmiuter  v. 
Symons,  2  Bro.  P.  C.  182;  1  Wils.  185  ; 
Aspinal  v.  Wake,  10  Bing.  51 ;  Story  on 
Bills,  §§  113,  262;  Schultz  v.  Astley,  2 
Bing.  N.  C.  544  ;  Pitt  v.  Chappelow,  8  M. 
&  W.  616;  Braithewaite  v.  Gardiner,  10 
Jur.  591  ;  Haliflix  v.  Lye,  18  Law  Journ. 
197,  C.  P.;  Smith  v.  Marsack,  6  D.  &  L. 
363  ;  Bank  of  Commerce  v.  Union  Bank, 
3  Comst.  230. 

2  Free  v.  Hawkins,  Holt's  Cas.  550; 
Young  V.  Patterson,  11  Rob.  (Louis.)  R. 
7.  [A  person  who  pi'ocures  notes  to  be 
discounted  by  a  bank,  impliedly  warrants 
the  genuineness  of  the  signatures  of  the 
makers  and  indorsers ;  and  such  implied 
contract  is  not  a  representation  concerning 
the  character,  credit,  or  ability  of  another, 
within  the  statute  of  frauds.  Cabot  Bank 
V.  Morton,  4  Gray,  156;  Markle  v.  Hat- 
field, 2  Johns.  455  ;  Herrick  v.  Whitney, 
15  lb.  240;  Canal  Bank  v.  Bank  of 
Albany,  1  Hill,  287  ;  Talbot  v.  Bank  of 
Rochester,  lb.  295.  And  if  the  person 
procuring  the  notes  to  be  discounted  by 
a  bank,  says,  when  offering  them  for  dis- 
count, they  are  good,  and  in  case  of  non- 
payment he  will  see  them  paid,  this  is  no 
evidence  of  a  waiver  by  the  bank  of  the 
implied  warranty  of  the  genuineness  of 
the  signatures.  Cabot  Bank  v.  Morton, 
ubi  supra.] 


3  Robinson  v.  Yarrow,  7  Taunt.  455  ; 
Story  on  Bills,  §§  262,  263,  412,  451. 

*  Robinson  v.  Yarrow,  7  Taunt.  455 ; 
Story  on  Bills,  §§  262,  263,  412,  451  ; 
Smith  V.  Chester,  1  T.  R.  654.  But  where 
the  bill  is  made  payable  to  the  drawer's 
own  order,  and  by  him  is  indorsed,  the  ac- 
ceptance, though  it  may  not  be  an  admis- 
sion of  the  genuineness  of  his  indorse- 
ment (a  distinction  which  Mr.  Justice 
Story  thought  very  nice  and  not  very  sat- 
isfactory, see  Story  on  Bills,  §  412),  yet  is 
an  admission  of  his  authority  to  transfer 
the  bill  to  the  bonajide  holder.  Thus, 
where,  in  an  action  by  the  indorsee  against 
the  acceptor  of  such  a  bill,  it  appeared 
upon  demun-er,  that  the  drawer,  at  the 
time  of  drawing  the  bill,  was  an  uncertifi- 
cated bankrupt,  and  so  had  no  right  to 
control  the  funds,  yet  it  was  held,  that  the 
defendant,  by  the  acceptance,  had  conclu- 
sively admitted  his  right  so  to  do,  and  as 
against  the  indorsee'  was  estopped  to  set  up 
such  a  defence.  Pitt  v.  Chappelow,  8  M. 
&  W.  616;  Braithwaite  v  Gardiner,  10 
Jur.  591.  And  see  Story  on  Bills,  §  85, 
note. 

i  See  ante,  Vol.  1,  §§  578,  581  ;  Alport 
V.  Meek,  4  C.  &  P.  267.  In  this  case,  as 
it  appeared,  by  the  plaintiff's  own  show- 
ing, that  neither  of  the  signatures  was  in 
the  handwriting  of  the  nominal  drawer, 
for  the  want  of  further  explanatory  evi- 
dence, he  was  nonsuited.  See  also  Jonea 
V.  Tumour,  4  C  &  P.  '204. 


148  LAW   OF   EVIDENCE.  [PART  IV. 

So,  though  the  bill  has  been  shown  to  the  drawer,  with  the 
indorsement  of  the  payee  upon  it,  and  his  objection  to  paying 
it  was  merely  because  it  was  drawn  without  consideration,  yet 
this  will  not  dispense  with  proof  of  the  indorsement. ^  But 
where  there  are  successive  indorsements,  which  are  all  laid  in 
the  declaration,  and  are  therefore  generally  necessary  to  be 
proved, 2  yet,  if  the  defendant  apply  to  the  holder  for  furthei 
time,  and  offer  terms,  this  is  an  admission  of  the  plaintiff's  title, 
and  a  waiver  of  proof  of  all  the  indorsements  except  the  first.^ 
So,  if  the  payee  delivered  it,  with  his  name  indorsed  on  it,  to  an- 
other, the  proof  of  this  fact  will  dispense  with  direct  proof  of  the 
indorsement.*  So,  if  the  drawee,  at  the  time  of  acceptance  of 
an  indorsed  bill,  expressly  promises  to  pay  it,  this  has  been 
held  an  admission  of  the  indorsements.^ 

§  166.  The  plaintiff  is  not  bou7id  to  allege,  nor  of  course  to 
prove  any  indorsements  hut  such  as  are  necessary  to  convey  title 
to  himself.  All  others,  therefore,  may  be  stricken  out;  even 
after  the  bill  has  been  read  in  evidence,  and  after  an  objection 
has  been  taken  on  account  of  variance.^  And  in  an  action 
against  a  subsequent  indorser,  it  is  not  necessary  to  prove  any 
indorsement  prior  to  his  own,  even  though  alleged."^  If  the 
action  is  against  the  drawer  or  acceptor,  and  the  first  indorse- 
ment was  in  blank,  it  will  be  unnecessary  to  prove  any  of  the 
subsequent  indorsements,  though  they  were  in  full ;  they  may 
therefore  be  stricken  out  at  the  time  of  trial,  unless  set  out 
in  the  declaration ;  which,  however,  may  in  that  case  be 
amended. s  If  the  bill  or  note  was  made  payable  to  the  order 
of  a  fictitious  person,  and  the  party  sued  knew  that  fact  when 
he  became  party  to  the  bill  or  note,  or  before  he  transferred  it, 

1  Duncan  V.  Scott,  1  Campb.  101.  ^  Critchlow  v.  Parry,  2  Campb.   182; 

2  Chitty  &  Hulme  on  Bills,  p.  642  (9th     Lambert  v.  Pack,  1  Salk.  127  ;  Chaters  v. 
jd.) ;  unte,  Vol.  1,  §  60.  Bell,  4  Ksp.  210. 

3  Bosanquet  v.  Anderson,  6  Esp.  43.  ^  Walwyn   v.   St.   Quintin,  1   B.  &  P. 
*  Glover  i'.  Thompson,  Ry.  &  M.  403.     658;  2  Esp.  .51.5,  S.  C. ;  Chaters  v  Bell,  4 

{>ut  where  the  acceptor  negotiated  the  bill  Esp.  210  ;  Smith  v.  Chester,  1  T.  R.  6.54. 

vith  tlie  drawer's  name  indorsed,  he  was  If  the  note  or  bill,  thou,o;h  indorsed  and 

not  allowed,  as  against  the  indorsee,  to  transferred,  gets  back  again  into  the  hand8 

olead  that    it   was    not    indorsed    by  the  of  the  payee,  he  is  prima  facie  the  legal 

drawer   to   the  plaintiff,  in  addition  to  a  owner.     Dugan  &  al.  v.  The  United  States, 

plea  denying  the  acceptance.     Gilmore  v.  3  Wheat.  172.     The  holder  may  derive  ti- 

Hagne,  4  Uowl.  P.  C.  303.  tie  to  himself  from  any  preceding  indorser, 

s^Hiinkey    v.   Wilson,    Sayer,    R.    223.  striking  out  the  intermediate  indorsements. 

And  see  Si'dford  v.  Chambers,  1  Stark.  R.  Emerson  v.  Cutts,  12  Mass.  78  ;  Tyler  v 

326.  Binney,  7  Mass.  479;  Watervliet  Bank  » 

6  Mayer  v.   Jadis,   1    M.    &   Rob.  247.  White,  1  Denio,  608. 
And  see  DoUfiis  v.  Frosch,  1  Denio,  R.  367. 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMISSORY   NOTES.  149 

this  will  dispense  with  proof  of  the  handwriting  of  the  fictitious 
indorse!'.^  It  may  here  be  added,  that  where  the  indorser  of 
a  bill  or  note  is  not  a  party  to  the  suit,  he  is  generally  a  com- 
petent witness  to  prove  his  own  indorsement ;  ^  and,  that  the 
indorsement  of  an  infant ;  ^  or,  of  a  feme  covert,^  she  being 
the  agent  of  her  husband  ;  or,  of  a  trader,  after  an  act  of 
bankruptcy,^  if  he  received  the  value,  are  alike  sufficient  to 
convey  title  to  the  indorsee. 

§  167.  In  an  action  against  the  drawer  or  acceptor  of  a  bill 
payable  to  the  order  of  several  partners,  it  is  in  general  necessary 
to  prove  the  partnership  and  the  handwriting  of  the  partner  or 
agent  of  the  firm  by  whom  it  was  indorsed.^  But  if  the  partner- 
ship has  been  dissolved,  it  is  not  necessary,  in  an  action  upon  a 
bill,  drawn  and  indorsed  by  one  partner  in  the  name  of  the  firm, 
to  prove,  that  the  bill  was  drawn  and  indorsed  before  the  disso- 
lution ;  for  the  bill  will  be  presumed  to  have  been  drawn  on 
the  day  of  its  date,  and  the  jury  will  be  at  liberty  to  infer,  that 
the  indorsement,  if  without  date,  was  made  at  the  same  time.'^ 
If  the  plaintiffs  sue  as  indorsees  of  a  bill  indorsed  in  blank,  they 
need  not  prove  their  partnership,  nor  that  the  bill  was  indorsed 
or  delivered  to  them  jointly ;  for  the  indorsement  in  blank  conveys 
a  joint  right  of  action  to  as  many  as  agree  in  suing  on  bill.^ 
But  if  a  bill  or  note  is  payable  or  indorsed  specially  to  a  firm,  by 
their  partnership  name,  and  they  sue  thereon,  strict  proof  must 
be  made,  that  the  firm  consists  of  the  persons  who  sue.^ 

1  Minet  v.  Gibson,  3  T.  R.  481 ;  Bennett  ^  Cliitty  &  Hulme  on  Bills,  pp.  37  -61, 
r.  Farnell,    1   Campb.   180  c;    Chitty   &     643  (9th  edit.). 

Hulme  on  Bills,  pp.  157,  158  (9th  edit.)  ;  ^  Anderson  v.  Weston,  5  Bing.  N.  C. 

Story  on  Bills,  §  200  ;  Cooper  v.  Meyer,  296.     [Where  one  of  two  partners  files  his 

10  B.  &  C.  463.     [Where  the  payee  of  the  individual  petition  for  the  benefit  of  the  in- 

note  was  the  "New  E norland   Steam  and  solvent.  law,  and  afterwards,  bnt  before  the 

Gas   Pipe   Co.,''   and   there  was  no  such  first  publication  of  notice  on  said  petition, 

company  then  existing,  but  A  was  carry-  the  two  partners  divide  between  themselves 

ing  on  business  under  that  name,  A  may  certain  promissory  notes,  the  property  of 

transfer  the  title  to  the  note  by  an  indorse-  the  partnership,  and  payable  to  the  part- 

ment  in   his  own  name.     Bryant  v.  East-  nership  firm,  either  partner,  before  the  dis- 

man,  7  Cush.  111.]  solution  of  the  firm  by  the  publication  of 

2  Richardson  v.  Allan,  2  Stark.  R.  334 ;  notice  on  the  petition  of  the  individual 
ante,  Vol.  1,  §§  190,  383,  385.  partner,  may  indorse  the  partnership  name 

*  Taylor  v.  Croker,  4  Esp.  187 ;  Night-  on  the  notes  which  he  takes  under  said 
ingale  v.  Withington,  15  Mass.  273;  Jones  division.  Mechanics'  Bank  v.  Hildreth,  9 
V.  Darch,  4  Price,  300.  Cush.  356.] 

*  Cotes  V.  Davis,  1  Campb.  485 ;  Bar-         ^  Qrd  v.  Portal,  3  Campb.  239,  per  Ld 
low  V.  Bishop,  I  East,  434 ;  Miller  v.  De-  Ellenborough  ;  Attwood  v.  Rattenbury, 
lamaler,  12  Wend.  433;  Lord   v.  Hall,  8  Moore,  579,  per  Parke,  J.;  Rordasnz  v. 
M.   G.   &  S.  627  ;  [Stevens  v.   Beals,    10  Leach,  1  Stark.  R.  446. 

Cush.  291.]  9  3  Campb.  240,  note  ;  Chitty  &  Hulm« 

s  Smith  V.  Pickering,  1  Peake'sCas.  50.     on  Bills,  p.  644  (9th  edit.).     In  such  case. 


150  LAW   OF  EVIDENCE.  [PART  IV. 

§  168.  The  like  effect  is  given  to  a  hlanh  indorsement  in  other 
cases  ;  for  in  pleading  it  is  sufficient,  prima  facie,  to  convey  a  title 
to  the  actual  holder,  and  of  course  nothing  more  need  be  proved. 
Thus,  where  a  promissory  note  indorsed  in  blank  was  delivered  to 
one  to  get  it  discounted,  and  he  shortly  afterwards  returned  with 
the  money,  which  he  paid  over,  this  was  held  sufficient  to  entitle 
him  as  executor  to  recover  judgment  upon  the  note  as  indorsed  to 
his  testator.^  But  in  an  action  by  the  executor  of  the  payee, 
against  the  acceptor,  it  is  necessary  to  allege  and  prove,  that  the 
acceptance  was  in  the  testator's  lifetime.^  If  the  note,  after  being 
indorsed  in  blank,  is  delivered  in  pledge  by  the  payee,  as  collateral 
security  for  a  debt,  this  will  not  prevent  the  payee-  from  suing  upon 
it  in  his  own  name,  or  again  transferring  it,  subject  only  to  be 
defeated  by  the  claim  of  the  pledgee.^ 

§  169.  If  the  action  is  by  the  draiver  against  the  acceptor  of  a  bill, 
which,  having  been  dishonored,  he  has  been  obliged  to  pay  to  the 
holder,  and  these  facts  are  alleged  in  the  declaration,  the  plaintiff 
must  prove  the  return  of  the  bill,  and  the  payment  by  him  ;  but  it 
is  not  necessary  to  prove,  that  the  acceptor  held  funds  of  the 
drawer,  this  being  admitted  by  the  acceptance.*  And  if  a  prior 
indorser,  who  has  been  obliged  to  pay  a  subsequent  indorsee,  sues 
the  acceptor,  it  has  been  held  that  he  must  prove  such  payment.^ 
But  in  all  these  actions,  founded  on  the  return  of  a  bill,  if  it  is* 
shown  that  the  instrument  was  once  in  circulation,  it  will  be  pre- 
sumed that  it  came  back  into  the  plaintiff's  hands  by  payment,  in 
the  regular  course,  by  which  dishonored  paper  goes  back  to  the 
original  parties.® 

§  170.  Where  the  action  is  by  an  accommodation  acceptor  against 
the  drawer,  either  for  money  paid,  or  specially  for  not  indemnify- 
ing the  plaintiff,  in  addition  to  proof  of  the  drawing  of  the  bill,  and 
of  the  absence  of  consideration,  the  plaintiff  should  prove  payment 
of  the  bill  by  himself,  or  some  special  damage,  or  liability  to  costs, 
by  reason  of  his  acceptance.'^  But  here,  also,  the  mere  production 
of  the  bill  by  the  plaintiff  is  not  sufficient  proof  that  he  has  paid  it, 

the   names  of  the  partners  may  be  sug-  ^  Mendez  v.   Carreroon,  1  Ld.  Raym. 

gestcd  to  the  witness  by  whom   the  part-  742. 

nership  is  proved.     ^n<e,  Vol.  1,  §  435.  ^  pfld    j,.    Vanbatcnburg,    2     Campb. 

1  Godson  y.  Richards,  6  C.  &  P.  188.  439;   Dugan    v.    The    United    States,   3 

2  Anon.,  12  Mod.  477,  per  Holt,  C.  J,  Wheat.   172;  Baring  v.   Clark,   19   Pick. 
And  see  Sarell  v.  Wine,  3  East,  409.  220. 

3  Fisher  v.   Bradford,    7    Grcenl.    28;  7  Chilton  v.  Whiffin  et  al,  3  Wils.  13; 
Bowman  v.  Wood,  15  Mass.  5.34.  Bullock  v.  Lloyd,  2  C.  &  P.  119;  Chit- 

*  Chitty  &  Hulme  on  Bills,  pp.  537,  647     tv  &  Hulme  on  Bills,  p.  647  (9th  edit.). 
(9th  edit  J;  Vere  v.  Lewis,  3  T.  R.  182. 


PART  IV. J       BILLS   OF  EXCHANGE   AND    PROMISSORY  NOTES.  151 

unless  he  shows,  that  it  was  once  in  circulation  after  it  was  ac- 
cepted.    And,  generally,  payment  will  not  be  presumed,  from  a 
receipt  indorsed  on  the  bill,  unless  it  is  shown  to  be  in  the  hand 
writing  of  one  entitled  to  demand  payment.^ 

§  171.  In  regard  to  the  consideration^  two  things  are  to  be 
noted  :  first^  as  to  the  parties  between  whom  it  may  be  impeached  ; 
and  secondly,  as  to  the  burden  of  proof.  And  here  it  is  first  to  bo 
observed,  that  the  consideration  of  a  bill  or  note,  as  well  as  of  any 
other  unsealed  instrument  of  contract,  is  impeachable  by  the  im- 
mediate or  original  parties  ;  between  whom,  the  general  rule  is, 
that  the  want  of  it  may  always  be  set  up  by  the  defendant,  in  bar 
of  the  action.  Thus,  it  may  be  insisted  on  by  the  drawer  against 
the  payee ;  by  the  payee  against  his  indorsee  ;  and  by  the  acceptor 
against  the  drawer.  The  same  rule  is  applied  to  all  persons  stand- 
ing precisely  in  the  situation  of  the  original  parties,  and  identified 
with  them,  in  equity ;  such  as,  their  agents  ;  purchasers  of  paper 
dishonored  by  being  over-due ;  persons  who  have  given  no  value 
for  the  bill ;  purchasers  with  notice  that  the  instrument  is  void 
in  the  hands  of  the  assignor,^  whether  from  fraud,  or  from  want, 
failure,  or  illegality  of  consideration.  These  parties  are  regarded 
as  taking  the  bill  or  note,  subject  to  all  the  equities  attaching  to 
the  particular  bill  in  the  hands  of  the  holder ;  but  not  to  equities, 
which  may  exist  between  the  parties,  arising  from  other  transac 
tions.^  But,  on  the  other  hand,  no  defect  or  infirmity  of  consider- 
ation, either  in  the  creation  or  in  the  transfer  of  a  negotiable  secu- 
rity, can  be  set  up  against  a  mere  stranger  to  the  transaction,  such 
as  a  bona  fide  holder  of  the  bill  or  note,  who  received  it  for  a  val- 
uable consideration,  at  or  before  it  became  due,  and  without  no- 
tice of  any  infirmity  therein.     The  same  rule  will  apply,  though 

1  Pfiel  V.  Vanbatenburg,  2  Campb.  439  ;  &  Sewall's  notes.    See  infra,  §  200.    In  an 

Chitty  &  Hulnie  on  Bills,  uhi  supra.    And  action  by  an  indorsee  against  a  remote  in- 

see  Sclioley  v.  Walsby,  1  Peake's  Cas.  2.5;  dorser,  it  is  a  good  defence,  that  the  defend- 

Phillips  V.  Warren,  14  M.  &  W.  379.  ant,  at  the  time  when  he  indorsed  the  bill, 

-  But  if  a   promissory  note  or   bill,  is  was  so  intoxicated  and  under  the  influence 

available  to  the  holder,  and  he  transfers  it  of  liquor,  and  thereby  so  deprived  of  the 

to  another,  the  want  of  consideration  can-  use  of  his  reason,  as  to  be  unable  to  under- 

not  be  set  up  against  the  latter,  though  he  stand  the  nature  or  effect  of  the  indorse- 

had  notice  tliat  it  was  given  without  con-  ment ;  provided  the  plaintiff,  at  the  time 

sideraiion,  before  it  came  to    his    hands,  of  the  indorsement,  was  aware  of  his  being 

Dudley  v.  Littlefield,  8  Shep.  418.  in  that  state.     Gore  v.  Gibson,   13  M.  & 

3  Story  on  Bills,  §   187;    Burrough    v.  W.  623;  9  Jur.  140,  S.  C.     [Where  a  firm 

Moss,  10  B.  &  C.  558.     Hughes  ?;.  Large,  purchases  for  a  good  consideration,  and  be- 

2  Barr.  103.     In  the  United  States  the  de-  fore  maturity,  a  promissory  note  given  to 

fendant  has  in  many  instances   been    al-  one  of  the  partners  for  his  accommodation, 

lowed   to   claim   a   set-off  in  such   cases,  the  firm  cannot  recover  thereon,  as  it  is  af- 

founded  en  other  transactions.     See  Bay-  fected  with  notice  of  the  want  of  consider- 

lev  on  Bills,  p.  544  -  548,  cases  in  Phillips  ation.     Quinn  v.  Fuller,  7  Cush.  224.] 


152  LAW   OF  EVIDENCE.  [PART  IV 

the  present  holder  has  such  notice,  if  he  derives  his  title  to  the 
bill  from  a  prior  ho7ia  fide  holder  for  value.  Every  such  holder  of 
a  negotiable  instrument  is  entitled  to  recover  upon  it,  notwith- 
standing any  defect  of  title  in  the  person  from  whom  he  derived 
it ;  and  even  though  he  derived  it  from  one  who  acquired  it  by 
fraud,  or  theft,  or  robbery.^ 

§  172.  Secondly,  as  to  the  burden  of  proof ^  it  is  to  be  observed, 
thai  bills  of  exchange  enjoy  the  privilege,  conceded  to  no  unsealed 
instruments  not  negotiable,  of  h^mg presumed  to  be  founded  upon' 
a  valid  and  valuable  consideration.  Hence,  between  the  original 
parties,  and,  a  fortiori,  between  others  who  became  5o/?a  ^c?e  holders, 
it  is  wholly  unnecessary  to  establish,  that  the  bill  was  given  for  such 
consideration  ;  the  burden  of  proof  resting  upon  the  other  party  to 
establish  the  contrary,  and  to  rebut  the  presumption  of  value,  which 
the  law  raises  for  the  protection  of  all  negotiable  paper.^  The 
same  principle  applies  to  the  consideration  paid  by  each  successive 
holder  of  the  bill.  But  even  in  an  action  by  the  indorsee  against 
an  original  party  to  a  bill,  if  it  be  shown,  on  the  part  of  the  de- 
fendant, that  the  bill  was  made  under  duress,  or  that  he  was  de- 
frauded of  it,  or  if  a  strong  suspicion  of  fraud  be  raised,  the  plain- 
tiff will  then  be  required  to  show  under  what  circumstances  and 
for  what  value  he  became  the  holder.^    It  is,  however,  only  in  such 

1  Story  on  Bills,  §  187-  194  ;  Chitty  &  sive  evidence.  But  in  a  suit  between  the 
Hulme  on  Bills,  p.  68-81  (6th  edit).  original  parties,  the  consideration  may  be 

2  Story  on  Bills,  §  178  ;  Emery  v.  Estes,  inquired  into  ;  and  as  the  burden  is  on  the 
1  Redingt.  155.  [A  promissory  note  is  plaintiff  to  prove  a  good  consideration,  if 
piven  for  "  value  received  "  ;  this  is  signed  the  whole  evidence  offered  on  both  sides 
by  the  maker,  and  is  an  admission  on  his  leaves  it  in  doubt  whether  there  was  a  good 
part  that  value  has  been  received  for  it,  consideration  or  not,  the  plaintiff  fails  to 
which  is  a  good  consideration.  Its  being  make  out  his  case.  In  general,  the  )jroof 
produced  by  the  holder,  is  proof  that  after  of  want,  or  failure,  of  consideration,  must 
being  signed  it  was  delivered  to  the  prom-  commence  on  the  part  of  the  defendant  af- 
isee,  and  is,  therefore,  evidence  of  a  con-  ter  the  jiroduction  and  proof  of  tiie  note  by 
tract,  on  good  consideration,  between  the  plaintiff,  not  because  the  defendant  has 
promisor  and  promisee,  under  the  promi-  the  burden,  or  the  burden  of  proof  has 
sor's  hand.  But  as  between  the  original  shifted,  but  because  tlie  plaintiff  has  offered 
parties,  such  proof  is  not  conclusive.  It  is,  pr/ma/aci'e  proof  suflBciunt  to  sustain  the 
therefore,  prima  facie  evidence,  that  is,  it  burden  of  proof  on  his  part  unless  it  is 
is  competent  evidence  tending  to  prove  a  rebutted  and  controlled  by  counter  proof, 
proposition  of  fact,  and  if  not  rebutted  or  Shaw,  C.  J.,  in  Burnhara  v.  Allen,  1  Gray, 
controlled  by  other  evidence,  will  stand  as  500.]  [*When  a  note  is  silent  as  to  the 
sufficient  proof  of  such  proposition  of  fact,  consideration,  in  a  suit  between  the  origi- 
If  then,  on  a  trial  of  a  suit  on  a  note  by  the  nal  parties,  the  plaintiff  must  aver  and 
promisee  against  the  promisor,  the  signa-  prove  a  consideration.  Bourne  v.  Ward, 
ture  is  admitted  or  proved,  and  the  plain-  51  Maine,  191.  So  in  Connecticut.  Bris- 
tiff  produces  and  reads  his  note  for  value  tol  y.  Warner,  19  Conn.  II.  17  ;  Edgerton  y. 
received,  he  has  ordinarily  no  occasion  to  Edgerton,  8  Conn.  R.  6.] 

go  further.     He  has  the  burden  of  proof  '^  Chitty  &  Hulme  on  Bills,  pp.  648,  649 

to    show  consideration  ;   but  he   sustains  (9th  edit.)  ;  Duncan  v.  Scott,  1   Campb. 

that  burden   by  his  prima  facie  evidence,  100;  Rees  v.  Marq.  of  Headfort,  2  Campb. 

which,  if  not  rebutted,  stands  as  conclu-  574;  Heydon  v.  Thompsia,  1  Ad.  &  El. 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMISSORY   NOTES.  153 

cases,  that  this  proof  will  be  demanded  of  the  holder  ;  it  will  not 
be  required,  where  the  defendant  shows  nothing  more  than  a  mere 
absence  or  want  of  consideration  on  his  part.^  Nor  will  it  suffice 
for  the  acceptor  to  show,  that  the  drawer  procured  all  the  indorse- 
ments to  be  made  without  consideration,  in  order  that  the  action 
might  be  brought  by  any  indorsee,  under  an  agreement  between 
the  plaintiff  and  the  drawer,  to  share  the  money  when  recovered ;  ^ 
nor,  that  the  bill  was  accepted  in  order  to  raise  money  for  his  own 
use,  of  which  the  payee  had  subsequently  defrauded  him.^ 

§  173.  The  burden  of  proof  is  somewhat  affected  by  AiQform  of 
the  issue.  Thus,  in  an  action  by  the  drawer  against  the  acceptor 
of  a  bill,  if  the  consideration  of  the  acceptance  is  impeached  under 
the  general  issue,  as  is  ordinarily  the  course  in  the  American 
courts,  the  burden  of  proof  is  on  the  acceptor.  And  so  it  is,  where 
the  plaintiff,  in  his  replication,  merely  alleges  that  there  was  a 
valid  consideration  for  the  acceptance,  without  specifying  what  it 
was ;  or,  where  he  states  the  kind  of  consideration  under  a  vide 
licet,  so  as  not  to  confine  himself  to  precise  proof  of  the  allegation. 
But,  where  he  chooses  specially  to  allege  the  sort  of  consideration 
on  which  he  relies,  concluding  with  a  verification,  so  that  the  de- 
fendant has  an  opportunity  to  traverse  it,  and  does  so,  the  burden 
of  proof  is  on  the  plaintiff,  precisely  to  maintain  his  replication.* 

§  174.  In  the  fourth  place,  the  plaintiff  must  show  a  breach  of 
contract,  by  the  defendant.  And  here  it  is  to  be  observed,  that  the 
engagement  of  the  defendant  is  either  direct  and  absolute,  or  con- 

210  ;  Whitaker  v.  Edmunds,  1  M.  &  Rob.  cover  upon   it.     The  burden   of  proof  is 

366,  per  Pattcson,  J. ;  I  Ad.  &  El.  638,  S.  upon  the  defendant  to  show  that  the  holder 

C.  ;  Heath  v.  Sansom,  2  B.  &  Ad.  291,  as  took  it  under  such  circumstances  that  he 

limited  and  explained  by  Patteson,  J.,  in  I  has  no  claim  upon  it.     Wyer  v.  Dorches- 

M.  &  Rob.  367,  and  by  Tindal,  C.  J.,  in  1  ter  &  M.  Bank,  1 1  Cush.  53 ;  Solomons  v. 

Bing.  N.  C.  267;  Munroe   v.    Cooper,    5  The  Bank  of  England,  13  East,  135,  note; 

Pick.  412;  Story  on   Bills,  §§  193,  194;  King  v.    Milsom,  2    Campb.    5;    De    la 

Musgrave  v.  Drake,  5  Ad.  &  El.  185,  N.  Chaumctte  v.  Bank  of  England,  2  Bain.  & 

S. ;  Small  v.    Smith,  1    Denio,    R.    583  ;  Adolph.  385  ;  Louisiana  Bank  v.  Bank  of 

Harvey  v.  Tower,  15  Jur.  544.     [Post,  p.  U.  S.,  9  Martin,  398.] 

639.     The  burden  of  proving  good  faith  is  i  Ibid. ;  Lowe  v.  Chifney,  1  Bing.  N.  C. 

all   the  law  imposes  on    him.     Worcester  267 ;  1  Scott,  95,  S.  C. 

County  Bank  v.  D.  &  M.  Bank,  10  Cush.  '^  Whitaker  v.  Edmunds,  1  M.  &  Rob. 

491  ;  recognized  in  Wyer  v.  D.  &  M.  Bank,  367. 

11  lb.  53;  Goodman  v.  Harvev,  4  Adolph.  ^  Jacob  v.  Hungate,  1   M.  &  Rob.  445. 

&  El.  870,  and  6  Nev.  &  Man."372 ;  Uther  See   further,    Chitty   &   Hulme   on  Bills, 

j;.  Rich,  10  Adolph.  &  El.  790;  Arbouin  649-651  (9th  edit.). 

V.  Anderson,  1  Adolph.  &  El.  N.  R.  504 ;  *  Batley  v.  Catterall,  1  M.  &  Rob.  379r, 

Hall  V.  Featherstone,  3  Hurlstone  &,  Nor-  and  note  (a).    See  alsoLaceyr.  Forrester, 

man,  284.  2    C.  M.  &  R.  59  ;  Chitty   &    Hulme   on 

But  the  holder  of  a  bank-bill,  proved  to  Bills,  pp.  648,  649  (9th  edit.) ;  ante,  VoL 

have  been  stolen,  is  not  bound  to  show  how  1,  §§  58,  59,  60, 
he  came  by  the  bill,  to  enable  him  to  re- 


154  LAW   OF   EVIDENCE.  [PART  IV. 

ditional.  In  the  former  case,  as,  in  an  action  against  the  maker 
of  a  promissory  note,  or,  against  the  acceptor  of  a  bill,  upon  a  gen- 
eral acceptance  to  pay  the  bill  according  to  its  tenor,  it  is  not  ne- 
cessary for  the  plaintiff  to  prove  ^  presentment  for  payment,  it  being 
not  essential  to  his  right  to  recover.^  Where  the  bill  is  drawn 
generally,  but  the  acceptance  is  made  payable  at  a  particular  place, 
it  has  been  much  questioned  whether  it  was  necessary  for  the 
holder  to  prove  a  presentment  for  payment  at  the  place  named  in 
the  acceptance,  in  order  to  show  the  acceptor's  default.  In  Eng- 
land, it  was  formerly  held,  that,  in  such  case,  a  presentment  at 
the  place  must  be  shown ;  2  but  subsequently,  by  statute,^  such 
acceptance  has  been  declared  to  be  a  general  acceptance,  unless 
restrictive  words  are  added,  making  the  bill  payable  at  that  place 
alone.  But  in  the  Supreme  Court  of  the  United  States,  it  is  held, 
that  as  between  the  holder  and  the  acceptor,  no  demand  at  the 
place  named  in  the  acceptance  is  necessary,  to  entitle  the  plaintiff 
to  recover;  though  the  want  of  such  demand  may  affect  the 
amount  of  damages  and  interest ;  but  that  to  charge  the  drawer  or 
indorsers  of  the  bill,  a  demand  at  the  place,  at  the  maturity  of 
the  bill,  is  indispensable.* 

§  175.  But  in  the  latter  case,  as  in  actions  against  the  drawer 
or  indorser  of  a  bill,  or  the  indorser  of  a  note,  the  undertakiyig  of 
the  defendant  being  conditional,  namely,  to  pay  in  case  the  party 
primarily  liable  does  not,  the  default  of  such  party  must  be  proved, 
or  the  proof  be  dispensed  with  by  the  introduction  of  other  evi- 
dence. The  receiver  of  a  bill  or  note  is  understood  thereby  to 
contract  with  every  other  party,  who  would  be  entitled  to  bring 
an  action  on  paying  it,  that  he  will  present  in  proper  time  to  the 
drawee  for  acceptance,  when  acceptance  is  necessary,  and  to  the 
acceptor  for  payment  when  the  bill  lias  arrived  at  its  maturity  and 
is  payable ;  to  allow  no  extra  time  for  payment,  to  the  acceptor  ; 
and  to  give  notice  in  a  reasonable  time,  and  without  delay,  to 
every  such  person,  of  a  failure  in  the  attempt  to  procure  a  proper 
acceptance  or  payment.     Any  default  or  neglect  in  any  of  these 

1  In  Maine,  if  a  promissory  note  is  pay-  3  j  &  2  Geo.  4,  cap.  78. 

able  at  a  place  certain  upon  demand,  or  ^  Wallace  w.  McConnell,  13  Pet.  R,  136; 

upon  demand  after  a  certain  day,  the  plain-  Story  on  Bills,  §  239  ;  3  Kent,  Comra.  99, 

tiff  is   not  entitled  to  recover,  unless  he  note  (5th  ed.).     And  see  ?«//•«,§  ISO,  a,  6, 

proves  a  demand  made  at  the  place.    Stat.  [Dockray  v.  Dunn,  37  Maine,  442  ;  Car- 

1846,  ch.  218.  ter  v.  Smith,  9  Cush.  321  ;  NichDls  v.  Pool 

■^  Howe  V.  Young,  3  B.  &  C.  165.    And  2  Jones,  Law  (N.  C.)  23.J 
see  PicQuet  v.  Curtis,  1  Sumn.  478 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMISSORY  NOTES.  lt)0 

respects  will  discbarge  every  such  person  from  responsibility  on 
account  of  a  non-acceptance  of  a  non-payment ;  and  will  make  it 
operate,  generally,  as  a  satisfaction  of  any  debt,  demand,  or  value 
for  which  it  was  given. ^ 

§  176.  Thus,  in  an  action  by  \hQ  payee  of  a  bill,  or  the  indorsee 
of  a  bill  or  note,  against  the  drawer  or  indorser^  it  is  necessary  to 
prove  a  presentment  to  the  drawee  for  payment.  If  the  bill  ia  pay- 
able at  sight,  or  in  so  many  days  after  sight,  or  after  demand,  or 
upon  any  other  contingency,  a  presentment,  in  order  to  fix  the 
period  of  payment,  must  be  made,  and  of  course  be  proved.  But 
if  the  bill  is  payable  on  demand,  or  in  so  many  days  after  date,  or 
the  like,  it  need  not  be  presented  merely  for  acceptance  ;  but  if  it 
is  so  presented,  and  is  not  accepted,  the  holder  must  give  notice 
of  the  dishonor  in  the  same  manner  as  if  the  bill  were  payable  at 
sight.2  The  presentment  for  acceptance  must  be  shown  to  have 
been  made  by  the  holder  or  his  agent,  if  acceptance  was  refused ; 
but  if  the  bill  was  accepted  on  presentment  by  a  stranger,  it  is 
available,  to  the  holder.  If  it  is  drawn  on  partners,  a  presentment 
to  one  of  them  is  sufficient ;  but  if  drawn  on  several  persons  not 
partners,  it  has  been  said,  that  it  should  be  presented  to  each  ; 
but  the  better  opinion  seems  otherwise,  for  if  one  of  the  drawers 
should  refuse  to  accept,  the  holder  would  not  be  bound  to  take  the 
acceptance  of  the  otliers  alone.^  It  is  not  necessary  to  prove  that 
the  presentment  was  made  bi/  the  person  named  in  the  declaration, 
the  material  fact  being  the  presentment  alone,  by  some  proper  per- 
son.^ Nor  is  it  necessary  for  the  plaintiff,  in  an  action  against  the 
indorser,  for  non-payment  of  an  accepted  biU,  to  show  any  demand 
of  or  inquiry  after  the  drawer.^ 

§  177.  Presentment  of  the  bill  for  acceptance  is  not  excused  by 
the  drawee's  death,  bankruptcy,  insolvency,  or  absconding.  If 
he  is  dead,  it  should  be  presented  to  his  personal  representatives, 

1  Storv  on  Bills,  §§112,  227;  Bayley  on  2  gtory  on    Bills,   §§    112,   227,   228; 

Bills,  pp.  217,  286  (5th  ed.).     In    Texas,  Chitty  &  Hulme  on  Bills,  pp.   653,  654 

the  lialiility  of  drawers  and  indorsers  may  (9th  ed.). 

be  fixed  without  notice,  by  the  institution  ^  Story  on   Bills,    §    229  ;    Chitty    & 

of   proceedings,   within   a    limited    time,  Ilulme  on  Bills,  pp.  272-274   (9th  ed.). 

against  the  acceptor,  if  the  bill  has  been  ac-  [Where   there   are   several   makers   of   a 

cepted,  or  against  the  drawer,  if  acceptance  promissory  note,  not  partners,  a  demand 

is   n  fused.     Hartley's    Dig.    Art.   2528-  must  be  made  upon  all  the  makers.     Union 

2531.    [*  If  a  person  indorses  a  promissory  Bank  of  Weymouth  v.  Willis,  8  Met.  504. J 

note  after  it  is  due,  he  is  entitled  to  have  *  Boehm  v.  Campbell,  1  Gow.  R.  55  ; 

a  demand  made  on   the   maker  within  a  3  Moore,  15  S.  C. 

reasonable  time  and  of  immediate   notice  ^  Heylin    v.   Adamson,  2    Burr,   669 : 

of  the  non-payment.     Tyler  v.  Young,  30  Bromley  v.  Frazier,  1  Stra.  441  ;  Chitty 

Venn.  State,  143.1  &  Hulme  on  Bills,  p.  653  (9th  edit.). 


156 


LAW   OF  EVIDENCE. 


[part  IV. 


if  any,  or  at  his  last  domicile  ;  aud  if  lie  has  absconded,  it  should 
be  presented  at  his  last  domicile  or  place  of  business.^ 

§  178.  Whenever  it  is  essential  to  prove  a  presentment  for  ac- 
ceptance or  a  demand  of  payment,  it  must  appear  to  have  been 
made  at  the  proper  time.  No  drawee  can  be  required  to  accept 
a  bill  on  any  day  which  is  set  apart  by  the  laws  or  observances 
or  usages  of  the  country  or  place,  for  religious  or  other  purposes, 
and  is  not  deemed  a  day  for  the  transaction  of  secular  business ; 
such  as  a  Sunday,  Christmas  day,  or  a  day  appointed  by  public 
authority  for  a  solemn  fast  or  thanksgiving,  or  any  other  general 
holiday  ;  or  a  Saturday,  where  the  drawee  is  a  Jew.^  And  in  all 
cases,  the  presentment  must  have  been  made  at  a  reasonable  houi 
of  the  day.  If  made  at  the  place  of  business,  it  must  be  made 
within  the  usual  hours  of  business,  or,  at  farthest,  while  some 
person  is  there  who  has  authority  to  receive  and  answer  the 
presentment.  If  made  at  the  dwelling-house  of  the  drawee,  it 
may  be  at  any  seasonable  hour  while  the  family  are  up.^ 

§  179.    The  presentment  oi  o.  promissory  note  for  payment  should 


1  Story  on  Bills,  §  260;  Chitty  & 
Hulme  on  Bills,  pp.  279,  280  (9th  edit.)  ; 
Groton  v.  Dalheim,  6  Greenl.  476 ;  Greely 
V.  Hunt,  8  Shcpl.  455.  [Weems  v.  Far- 
mers' Bank,  15   Md.  231.] 

2  Story  on  Bills,  §§  233,  340. 

3  Story  on  Bills,  §  236  ;  Chitty  &  Hulme 
on  Bills,  pp.  454,  455,  654  (9th  edit.)  ; 
Parker  v.  Gordon,  7  East,  385  ;  Wilkins 
V.  Jadis,  2  B.  &  Ad.  155,  188  ;  Garnet  v. 
Woodcock,  6  M.  &  S.  44.  ["No  fixed 
rule  can  be  established,  by  which  to  de- 
termine the  hour  beyond  which  the  de- 
mand of  payment,  when  made  at  the 
maker's  residence,  will  be  unreasonable 
and  insufficient  to  charge  an  indorser. 
Generally,  however,  it  should  be  made  at 
such  an  hour,  that,  having  regard  to  the 
habits  and  usages  of  the  community  where 
the  maker  resides,  he  may  be  reasonably 
expected  to  be  in  a  condition  to  attend  to 
ordinary  business.  And  whether  the  pre- 
sentment is  within  a  reasonable  time  can- 
not be  made  to  depend  on  the  private  and 

Eeculiar  habits  of  the  maker  of  a  note,  not 
iiown  to  the  holder ;  but  it  must  be  de- 
termined by  a  consideration  of  the  circum- 
stances which,  in  ordinary  cases,  would 
render  it  seasonable  or  otherwise.  Barclay 
V.  Bailev,  2  Campb.  527  ;  Triggs  v.  Newn- 
ham,  10  Moore,  249  ;  1  Car  &  P.  631  ; 
Cayuga  Co.  Bank  v.  Hunt,  2  Hill  (N.  Y.) 
635."  By  Bigelow,  J.,  in  Farnsworth  v. 
Allen,  4  Gray,  454.  A  promissory  note 
dated  at  Boston,  but  expressing  no  place 


of  payment,  and  held  in  Boston  by  a  bank 
for  collection,  falling  due  at  the  end  of 
August,  was  presented  for  payment  at 
nine  o'clock  in  the  evening  of  the  last  day 
of  grace  at  the  house  of  the  maker,  ten 
miles  from  Boston,  after  he  and  his  tamily 
had  retired  for  the  night,  and  it  was  held  a 
sufficient  demand  to  charge  the  indorser. 
lb.]  [*  Notice  issued  by  a  bank  in  which 
a  note  is  placed  for  collection  to  the  maker 
of  the  note,  a  day  or  two  before  the  matu- 
rity of  the  note,  that  the  note  would  be  pay- 
able on  a  certain  day  named,  being  the  true 
day,  and  requesting  him  to  pay  it,  is  held  in 
Massachusetts  sufficient  demand.  Warren 
Bank  v.  Parker,  8  Gray,  221,  A  note  pay- 
able at  a  particular  bank,  where  the  maker 
had  no  funds,  was  delivered  after  business 
hours  on  the  last  day  of  grace,  to  the  teller, 
who  was  also  a  notary,  at  his  dwelling- 
house,  for  the  purpose  of  demanding  pay 
ment.  He  went  to  the  baiik,  and  being  un- 
able to  obtain  entrance,  demanded  payment 
of  liimself  at  the  bank  door.  It  was  held  a 
sufficient  presentment  to  charge  an  indor- 
ser. Bank  of  Syracuse  v.  Hollistcr,  17  N. 
y.  46  In  Merchants'  Bank  v.  Elderkin, 
25  N.  Y.  178,  it  is  held  to  be  a  sufficient 
demand  of  a  note  that  the  same  was  left 
for  collection  at  the  bank  where  it  was 
payable  on  the  last  day  of  grace,  and  the 
maker  having  no  funds,  it  was  returned  to 
the  holder  before  the  expiration  of  the 
last  business  hour.] 


PART  IV.]       BILLS   OF   EXCHANGE   AND  PROMISSORY  NOTES.  157 

be  made  at  its  maturity,  and  not  before,  nor  generally  after. ^ 
But  where  the  maker  lived  two  hundred  miles  from  the  holder,  a 
demand  made  six  days  afterwards  has  been  held  sufficient.^  If 
the  note  is  payable  at  a  certain  day  after  sight,  the  payment  of 
interest,  or  of  part  of  the  principal,  duly  indorsed  thereon,  is 
prima  facie  evidence  that  it  was  presented  for  sight  before  the 
time  of  such  payment,  and  that  it  became  due  on  the  day  when 
the  payment  was  made.^  If  it  is  payable  on  demand,  or  is  indorsed 
after  it  is  overdue,  payment  sliould  be  demanded  within  a  reason- 
able time,  in  order  to  charge  the  indorser.*  A  hanker'' s  check  may 
be  presented  on  the  next  day  after  the  date,  this  being  consid- 
ered a  reasonable  time.^ 

§  180.  It  must  also  appear,  that  the  presentment  was  made  at 
the  proper  place ;  and  this,  in  general,  is  the  town  or  munici- 
pality of  the  domicile  of  the  drawee.  If  he  dwells  in  one  place, 
and  has  his  place  of  business  in  another,  whether  it  be  in  the 
same  town,  or  in  another  town,  the  bill  may  be  presented  for 
acceptance  at  either  place,  at  the  option  of  the  holder  ;  and  this, 
even  though  a  particular  place  be  designated  as  the  place,  of  pay 
ment.^  If  the  bill  is  addressed  to  the  drawee  at  a  place,  where 
he  never  lived,  or  if  he  has  removed  to  another  place,  the  pre- 
sentment should  be  at  the  place  of  his  actual  domicile,  if,  by  dili- 
gent inquiries,  it  can  be  ascertained  ;  and  if  it  cannot  be  as- 
certained, or  if  the  drawee  has  absconded,  the  bill  may  be 
treated  as  dishonored.'^ 

1  Henry  v.  Jones,  8  Mass.  453  ;  Farnura  ^  Story  on  Bills,  §  325.  The  place  at 
V.  Fowle,  12  Mass.  88;  Woodbridge  v.  which  a  promissory  note  is  dated  is  prima 
Brigham,  Id.  403  ;  Barker  v.  Parker,  6  facie  evidence  of  the  residence  of  the  inak- 
Pick.  80,  81.  er  at  that  place;  bnt  it   is  no   indication 

2  Freeman  v.  Boynton,  7  Mass.  483.  of  the  place  of  paynjcnt,  nor  does  it  au- 
8  Way  V.  Bassett,  5  Hare.  55.  thorize  a  demand  there  for  the  purpose 
*  Chitty&  Hnlme  on  Bills,  pp.  379-386     of  charging  an   indorser.      If  the   maker 

{9th  edit.):  Colt  v.  Barnard,  18  Pick.  260.  of  a   note    has    absconded;   or,  being   a 

Seven  days  after  the  date,  has  been  held  suf-  seaman   and  without    a   domicile  in   the 

ficient.     Seaver  v.  Lincoln,  21  Pick.  267  ;  State,  is  absent  on  a  voyage;  and  also,  if 

and  eight  months  an  unreasonable  delay,  he  has  no  known  residence  or  place  of 

Field  V.  Nickerson,  12  Mass.  131  ;  Thayer  business  at  which  a  demand  can  be  made  ; 

V.  Brackett,  12  Mass.  450.     See  also  Syl-  a  presentment  for  payment  is  excused,  and 

vester  ?;.  Crapo,  15  Pick.  92;  Thompson  the   indorser  will  be  liable,  on  receiving 

V.  Hale,  5  Pick.  259  ;  Martin  v.  Winslow,  notice  of  the  facts  constituting  the  excuse. 

2  Mason,  241.     See  infra,  §  199,  note,  as  [*  See  §  195  iw/ra  and  notes.]     So,    if  the 

to  the  time  when  a  liote  payable  on  de-  maker,  after  making   the   note,  transfers 

made  is  to  be  considered  as  dishonored.  his  domicile  permanently  to  another  State, 

5  Chitty  &  Hnlme  on  Bills,  p.  385  (9th  the  holder  need  not  follow  him,  but  a  de- 
edit.),  mand  at  his  former  place  of  residence  will 

«  Story  on  Bills,  §  236  ;  Chitty  &  Hnlme  suffice.     If  the  note  is  made  and  dated  at 

on  Bills,  pp   365,  366  (9th  edit.);  supra,  one  place,  the  maker  having  and  continu- 

§  174  ing  to  have  a  known  residence  at  another. 


158  LAW   OF  EVIDENCE.  [PART  IV. 

§  180  a.  Where  the  hill  or  note  is  made  payable  at  a  particular 
place,  as,  at  a  bank,  or  a  banker's,  the  question,  wliether  a  pre- 
sentment for  payment  must  be  made  at  that  place,  in  order  to 
.entitle  the  holder  to  recover,  has  been  held  diversely  in  England 
and  in  the  United  States.  In  a  recent  work  of  the  highest  merit,^ 
the  law  in  the  two  countries  is  thus  stated :  "  According  to  the 
commercial  law  of  England,  if  a  promissory  note  is  made  payable 
at  any  particular  place,  as,  for  example,  at  a  bank,  or  a  banker's, 
a  presentment  should  be  there  made  for  payment.^  Before  the 
statute  of  1  &  2  Geo.  4,  ch.  78,  a  bill  of  exchange,  as  well  as 
a  promissory  note,  payable  at  a  bank  or  banker's,  was  required  to 
be  presented  at  the  bank  or  banker's  for  payment,  before  the 
acceptor  or  maker  was  bound  to  pay  the  same.^  That  statute 
changed  the  antecedent  responsibility  of  the  acceptor  of  a  bill 
of  exchange,  by  providing  that  an  acceptance,  payable  at  a 
banker's  or  other  specified  place,  without  adding  the  words,  '  and 
not  otherwise  or  elsewhere,'  should  be  deemed  a  general  accept- 
ance of  the  bill  to  all  intents  and  purposes,  so  that  no  present- 
ment or  demand  of  payment  at  such  banker's  or  other  specified 
place,  was  thereafter  necessary  to  be  made,  in  order  to  charge  the 
acceptor.*     But  the  statute  did  not  touch  the  rights  of  the  drawers 

the  demand  must  be   made  at  the  latter  ciently  diligent  inquiry  of  parties  and  oth- 

place,  and  not  at  the  former.     Taylor  v.  ers,  Phipps  v.  Chase,  6  jNIct,  491  ;  and  as 

Snyder,  3  Denio,  145.     And  see  Gilmore  to  the  duty  of  the  holder  of  a  note  to  in- 

V.    Spies,    1    Barb.    158.     To   enable   the  form  the  notary  or  bank  officer,  of  whom 

holder  to   charp:e   an  indorser,  without  a  to  make  inquiry,  and  where  the  persons  to 

demand  on  the  maker,  the  facts,  excusing  be  inquired  of  may  be  found,  Wheeler  v. 

the  demand,  must   be   distinctly   proved.  Field,  6  Met.  290.     Where  a  notary  certi- 

Taylor   v.   Snyder,  supra.     [Where  it  ap-  fied  that  he  went  several  times  to  the  place 

peared  that  the  notary  "  went  to  various  of  business  of  the  acceptor,  and  found  the 

places,  making  diligent  inquiry  of  divers  dooi's  closed,  and  no  one  there  to  answer 

persons,  for   the  promisor,  but  could  not  his   demand   for  payment,  he   cannot   be 

find  him,  nor  any  one  knowing  him,  nor  cliarged  with  neglect,  for   not  presenting 

any  one  with  funds  for  the  payment  of  the  the  bill  at  the  residence  of  the  acceptor,  in 

note,  and  thereupon  left  official  notice  of  the  same  city.     Wiseman  v.  Chiapella,  23 

the   default,  addressed  to  the  several  in-  How.  368.] 

dorsers  at  their  respective  places  of  busi-  i  Story  on  Promissory  Notes,  §§  227, 

ness  "  ;  tliis   showed  that  tlie  notary  had  228. 

not  used  such  reasonable  diligence  to  as-  ^  Story  on  Bills,  §  2.39,  and  note ;  Id. 

certain  the   i-esidence    of   the   maker    as  §  355  ;  Chitty  on  Bills,  eh.  7,  pp.  321,  3J2 

would  excu.se  the  want  of  legal  notice  to  (8th  ed.)  ;  Id.  cli.  9,  pp.  391,  392  ;  Bayley 

him  of  the  dishonor  of  the  note,  it  appear-  on  Bills,  ch.  1,  §  9,  pp.  29,  30  (5th  ed.)  ; 

ing  that  he  knew  the   places  of  business  Id.  ch.  9,  §  1,  pp.  199,  200;  Li.  ch.  7,  §  1, 

of  the  indorsers,  and  it  not  appearing  that  p.  219-222;  1   Bell,  Comm.  B.  3,  ch.  2, 

he  inquired  of  them  as  to  the  residence  of  §4,  pp.  412,413  (5tli  cd.)  ;  Gibbi'.  Mather, 

the  maker.    Porter  v.  Judson,  1  Gray,  175;  2  Cromp.  &  Jerv.  254;  S.  C.  8  Bing.  R. 

Granite  Bank  v.  Ayers,  IG  Pick.  392.     See  214. 

as  to  the  etlect  of  failure  on  the  part  of  the  ^  Ibid. 

notary  to  inquire  of  the  other  parties  to  *  Ibid.;  Chitty  on  Bills,  ch.  4,  p.  172- 

the  note  (the  maker  and  second  indorser),  174  (8th  ed.)  ;  Id.  ch.  7,  p.  321  -323;  Id. 

Peirce  v.  Fendar,  5  Met.  352;  as  to  suffi-  ch.  9,  pp.  391,  393,  396,  397  ;  Bayley  on 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROSHSSORY  NOTES.  159 

or  indorsers  of  any  such  bill,  but  left  them  to  be  governed  by 
the  antecedent  general  law.  Hence,  so  far  as  the  drawer  and 
indorsers  are  concerned,  a  due  presentment  and  demand  of  pay- 
ment is  still  necessary  to  be  made  at  the  banker's,  or  other  speci- 
fied place,  in  order  to  found  any  right  of  action  against  them.^ 
The  statute  does  not  comprehend  promissory  notes  payable  at  a 
banker's  or  other  specified  place ;  and  therefore  it  is  indispensa- 
ble, in  order  to  cliarge  the  maker  or  indorsers  of  a  promissory 
note,  that  a  due  presentment  and  demand  of  payment  should  be 
made  at  the  banker's  or  other  specified  place.  If  a  due  present- 
ment is  not  so  made,  the  indorsers  are  discharged  from  all  liability .^ 
The  maker,  indeed,  is  not  so  discharged ;  but  he  is  in  no  default, 
and  is  under  no  obligation  to  pay  the  note  until  presentment  and 
demand  has  been  actually  made  at  the  banker's  or  other  specified 
place  ;  ^  and  if  he  has  suffered  any  loss  or  injury  by  the  want 
of  a  due  presentment,  to  the  extent  of  the  loss  or  injury,  he 
will  be  discharged  as  against  the  holder."* 

§  180  b.  "  In  America  a  doctrine  somewhat  different  prevails, 
if  not  universally,  at  least  to  a  great  extent.  It  was  probably 
in  the  first  instance  adopted  from  the  supposed  tendency  of  the 
English  authorities  to  the  same  result ;  and  there  certainly  was 
much  conflict  in  the  authorities,  until  the  doctrine  was  put  at 
rest  by  the  final  decision  in  the  House  of  Lords,  —  a  decision 
which  seems  founded  upon  the  most  solid  principles,  and  to  be 
supported  by  the  most  enlarged  public  policy,  as  to  the  rights 
and  duties  of  parties.  The  received  doctrine  in  America  seems 
to  be  this,  that  as  to  the  acceptor  of  a  bill  of  exchange,  and  the 
maker  of  a  promissory  note,  payable  at  a  bank,  or  other  specified 
place,  the   same   rule   applies,  tliat   is,  that  no   presentment  or 

Bills,  ch.  1,  §  9,  p.  29  (5th   ed.) ;  Id.  ch.  -  Bayley  on  Bills,  ch.  7,  §  1,  p.  219  -  222 

6,  §  1,  p.  199-201;  Gibb  v.  Mather,  2  (5th  ed.) ;  Chittv  on  Bills,  ch.  9,  pp.  396, 

Cromp.    &  Jerv.  254;  S.    C.  8  Bing.  R.  397  (8th  ed.) ;  Sandersons  Bowes,  14  East, 

214;  Fayle  v.  Bird,  6   Barn.  &   Cressw.  500;  Roche  v.  Campbell,  3  Campb.  247; 

531  ;  3  Kent,  Coram.  Lect.  44,  p.  97,  and  Gibb  v.  Mather,  2  Cromp.  &  Jerv.  254  ,  S. 

note  (e),  and  Id.  p.  99,  note  (b),  (5th  ed.)  ;  C.  8  Bing.  214;  Dickinson  v.  Bowes,    16 

Story  on  Bills,  §  355  ;  Thompson  on  Bills,  East,  110  ;  Howe  v.  Bowes,  16  East,  112  ; 

ch.  6,  §  2,  pp.  420-428  (2d  ed.).  S.  C.  in  Error,  5  Taunt.  30;  Trecothi(  k  w. 

1  Gibb  V.  Mather,  2  Cromp.  &  Jerv.  254  ;  Edwin,  1  Stark.  R.  468;  Emblem  v.  Dart- 

S.  C.  8  Bing.  214;  Ambrose  u.  Ilopwood,  nell,    12    Mees.    &   Wels.    830;    Vander 

2  Taunt.  R.  61.     Tliis  whole  subject  was  Donckt  v.  Thelusson,  8  M.  G.  &  S  812. 

very  much  discussed  in  the  House  of  Lords  ^  Chitty   on  Bills,   ch.   5,   p.    174  (8th 

in  the  case  of  Rowe  v.  Younf^,  2  Brod.  «&  edit.);    Turner  v.    Hayden,    4   Barn.   & 

Bing.    R.    165;    S.   C.  2  Bligh,    R.   391.  Cressw.  1. 

See  also  Gibb  v.  Mather,  supra.      In  In-  *  Rhodes  v.  Gent,  5  Barn.  &  Aid.  244; 

{iia7ia,   the   English   doctrine   is    adopted.  Turner  y.  Hayden,  4  Barn.  &  Cressw.  1. 
Palmer  v.  Hughes,  4  Blackf.  R.  329 


160 


LAW   OF   EVIDENCE. 


[part  IV. 


demand  of  payment  need  be  made  at  the  specified  place,  on  the 
day  when  the  bill  or  note  becomes  due,  or  afterwards  in  order  to 
maintain  a  suit  against  the  acceptor,  or  maker ;  and  of  course, 
that  there  need  be  no  averment  in  the  declaration  in  any  suit 
brought  thereon,  or  any  proof  at  the  trial,  of  any  such  presentment 
or  demand.  But  that  the  omission  or  neglect  is  a  matter  of 
defence  on  the  part  of  the  acceptor  or  maker.  If  the  acceptor  or 
maker  had  funds  at  the  appointed  place,  at  the  time,  to  pay  the 
bill  or  note,  and  it  was  not  duly  presented,  he  will,  in  the  suit, 
be  exonerated,  not,  indeed,  from  the  payment  of  the  principal 
sum,  but  from  the  payment  of  all  damages  and  costs  in  that  suit. 
If  by  such  omission  or  neglect  of  presentment  and  demand  he  has 
sustained  any  loss  or  injury,  as  if  the  bill  or  note  were  payable 
at  a  bank,  and  the  acceptor  or  maker  had  funds  there  at  the 
time,  which  have  been  lost  by  the  failure  of  the  bank,  then,  and 
in  such  case,  the  acceptor  or  maker  will  be  exonerated  from 
liability  to  the  extent  of  the  loss  or  injury  sustained."  ^ 

§  181.    Where  the  bill  is  not  made  payable  in   so  many  days 


1  Story  on  Promissory  Notes,  §§  227, 
228 ;  Wallace  v.  McConncll,  13  Pet.  36. 
"  The  ground,"  says  Mr.  Justice  Story, 
"  upon  which  the  American  doctrine  is 
placed  is,  that  the  acceptor  or  maker  is 
the  promissory  debtor,  and  the  debt  is 
not  as  to  him  discharged  by  the  omission 
or  neglect  to  demand  payment,  when  the 
debt  became  due,  at  the  place  where  it  was 
payable.  Assuming  this  to  be  true,  it  by 
no  means  follows,  that  the  acceptor  or 
maker  is  in  default,  until  a  demand  of 
payment  has  been  made  at  the  place  of 
payment ;  for  the  terms  of  his  contract 
import  an  express  condition,  that  he  will 
pay  upon  due  presentment,  at  that  place, 
and  not  that  he  will  pay  upon  demand 
elsewhere  ;  and  the  omission  or  neglect  of 
duty,  on  the  part  of  the  holder,  to  make 
presentment  at  that  place,  ought  not  to 
change  the  nature  or  character  of  the  obli- 
gations of  the  acceptor  or  maker.  Now, 
the  right  to  bring  an  action  presupposes 
a  default  on  the  part  of  the  acceptor  or 
maker ;  and  it  may,  after  all,  make  a 
great  difference  to  him,  not  only  in  point 
of  convenience,  but  in  point  of  loss  by  ex- 
change, as  well  as  of  expense,  whether  if 
he  agrees  to  pay  the  money  in  Mobile,  or 
in  New  Orleans,  he  may  bo  recjuired,  with- 
out any  default  on  his  own  part,  notwith- 
standing he  has  funds  there  to  pay  the 
same  money  in  New  York  or  in  J3oston. 
He  may  well  say  :  Non  iu  hicc  Jbedera  veni." 
Story  on  Promissory  Notes,  §  229 ;  3  Kent, 


Comm.  97,  note  (e) ;  Id.  99,  note  (b).  "  The 
learned  commentator,"  he  says,  "  holds  the 
English  rule  to  be  the  true  one,  and  adds  : 
'  This  is  the  plain  sense  of  the  contract, 
and  the  words  "  accepted,  payable  at  a 
given  place,"  are  equivalent  to  an  exclu- 
sion of  a  demand  elsewhere.'  Story  on 
Bills,  §  356.  See  also  North  Bank  v.  Ab- 
bot, 13  Pick.  465  ;  Payson  v.  Whitcomb, 
15  Pick.  212;  Church  v.  Clark,  21  Pick. 
310;  Carley  v.  Vance,  17  Mass.  389; 
Ruggles  V.  Patten,  8  Mass.  480  ;  Mellon 
V.  Croghan,  15  Martin,  423;  Smith  v. 
Robinson,  2  Miller  (Louis.)  R.  405;  Pal- 
mer v.  Hughes,  1  Blackf  328 ;  Gale  v. 
Kemper,  10  Louis.  R.  208  ;  Warren  v.  All- 
nut,  1 2  Louis.  R.  454  ;  Thompson  v.  Cook, 
2  McLean,  125  ;  Ogden  v.  Dobbin,  2  Hall, 
N.  Y.  R.  112  ;  Picquet  v.  Curtis,  1  Sumner, 
478."  See  also  Story  on  Bills,  p.  263,  note 
(2).  In  Maine,  in  an  action  upon  a  note 
payable  on  demand  at  a  place  certain,  or  on 
demand  at  or  after  a  specified  time,  at  a  place 
certain,  the  plaintiff  is  required  to  prove  a 
demand  at  the  place,  before  suit,  Stat. 
1846,  ch.  218.  In  Gforr/ia,  it  has  been 
held,  that  in  the  case  of  bar)k-)iotcs,  made 
payable  at  a  place  certain,  the  hunk  is  en- 
titled to  a  presentment  at  the  place,  before 
it  is  liable  to  a  suit  upon  the  notes  ;  this 
case  constituting  an  exception,  on  grounds 
of  public  policy  and  convenience,  from  the 
general  rule  in  regard  to  j)rivate  bills  and 
notes.  Dougherty  v.  The  Western  Bank 
of  Georgia,  1  Am.  Law  Reg.  689. 


PART  IV.]        BILLS   OF  EXCHANOE   AND    PROMISSORY   NOTES. 


IGl 


after  sights  it  is  sufficient  to  prove  a  presentment  for  payment  at  the 
maturity  of  the  bill,  and  a  refusal  of  payment.  And  it  suffices 
to  show  a  presentment  for  acceptance,  and  a  refusal  to  accept  at 
any  time  previous  to  the  maturity  of  the  bill ;  for  upon  its  dis- 
honor, the  drawer  becomes  liable  immediately .^  It  also  suffices 
to  show,  that  the  drawee  refused  to  accept  according  to  the  tenor 
of  the  bill,  notwithstanding  the  defendant  should  offer  to  prove, 
that  the  drawee  offered  a  different  acceptance,  equally  bcncfi- 
cial  to  the  holder.^  But  the  plaintiff  must,  in  all  cases,  show, 
that  the  refusal  proceeded  from  the  drawee;  a  declaration  by 
some  unauthorized  person,  that  the  bill  would  not  be  accepted, 
is  not  sufficient.^ 

§  182.  Presentment  for  payment,  as  well  as  notice  of  dishonor, 
may  be  proved  by  entries  in  the  books  of  a  deceased  notary,  clerk, 
messenger  of  a  bank,  or  other  person,  whose  duty  or  ordinary 
course  of  business  it  was  to  make  such  entries.* 

§  183.  In  an  action  against  the  drawer  or  indorser  of  a  foreign 
hill,  (and  even  of  an  inland  bill,  if  a  protest  is  alleged,)  the  plains 
tiff  must  "prove,  beside  the  presentment  and  notice  of  dishonor, 
a  protest  for  non-acceptance,  or  non-payment.^    The  proper  evir 


1  Chitty  &  Hulme  on  Bills,  p.  654  (9tli 
edit.);  Ballingalls  v.  Gloster,  3  East, 
481. 

2  Chitty  &  Hulme  on  Bills,  pp.  654,  655 
(9tli  edit.) ;  Boehm  v.  Garcias,  1  Carapb. 
425,  note. 

8  Clieek  y.Hoper,  5  Esp.  175. 

*  See  ante,  Vol.  1,  §  116.  In  Neiv  Jer- 
sey, the  notary  is  bound  to  keep  a  record 
of  his  acts,  in  regard  to  protected  bills  of 
exchange  or  promissory  notes ;  and  in 
case  of  his  death  or  absence  in  parts  un- 
known, the  record  is  made  competent  evi- 
dence of  the  matters  therein  contained. 
Rev.  Stat.  1846,  tit.  29,  ch.  1,§§  7-9. 

In  Pennsylvania,  the  want  of  demand 
and  notice  is  no  defence,  unless  the  places 
of  demand  and  of  notice,  or  the  names 
and  residences  of  the  parties  thereto,  are 
distinctly  set  forth  on  the  bill  or  note. 
And  if  such  names  and  places  are  not  so 
set  forth,  the  bills  and  notes  are  deemed 
payable  and  protestable  at  the  place  where 
they  are  dated  ;  or  if  without  place  of  date, 
then  at  the  place  where  they  are  deposited 
or  held  for  collection  ;  and  drafts  on  third 
persons  are  deemed  acceptable,  payable, 
and  protestable  at  the  place  where  they  are 
addressed  to  the  drawee  ;  and,  in  all  such 
■•ases,  demand  of  acceptanci-',  protest,  and 
.iotice  of  non-acceptance  may  be  made  and 
VOL.  II.  11 


given  before  maturity  of  the  bill ;  and  de- 
mand of  payment,  protest,  and  notice  of 
non-payment  may  be  made  and  given  at 
any  time  after  maturity  of  the  bill,  and  be- 
fore suit.  Dunlop,  Dig.  ch.  694,  §§  7  -  9. 
[The  protest  of  a  promissory  note,  duly 
authenticated  by  the  signature  and  oflScial 
seal  of  a  notary-public,  and  found  among 
his  papers  after  his  death,  is  competent 
secondary  evidence  of  the  acts  of  the  nota- 
ry stated  therein,  respecting  presentment, 
demand,  and  notice.  Porter  v.  Judson,  1 
Gray,  175.  But  such  proof  cannot  be 
made  by  the  affidavit  of  an  attorney-at-law, 
since  deceased,  it  not  appearing  that  such 
acts  were  done  in  the  discharge  of  a  duty, 
and  in  the  regular  course  of  business. 
Bradbury  v.  Bridges,  38  Maine,  346.] 
[*It  is  allowable  to  permit  a  notary  to 
state  his  usual  course  of  proceeding  and 
his  customary  Jiabits  of  business.  Union 
Bank  v.  Stone,  50  Maine,  601.] 

5  Story  on  Bills,  §§  273,  281 ;  Chitty  & 
Hulme  on  Bills,  pp.  445,  655  (9th  edit.) 
Protest  of  an  inland  bill  is  not  necessary. 
Id. ;  Young  v.  Bryan,  6  Wheat.  146.  Nor 
is  it  necessary  to  serve  a  copy  of  the  pro- 
test with  the  notice  of  the  dishonor  of  a 
bill.  Cowperthwaite  v.  Sheffield,  1  Saadf 
S.  C.  R.  416. 


162  LAW   OF  EVIDENCE.  [PART  IV 

dence  of  the  protest  is  the  production  of  the  notarial  act  itself ;  ^ 
and  if  this  was  made  abroad,  the  seal  is  a  sufficient  authentication 
of  the  act,  without  farther  proof ;  ^  but  it  is  said,  that  if  the  protest 
was  made  within  the  jurisdiction,  it  must  be  proved  by  the  notary 
who  made  it,  and  by  the  attesting  witness,  if  any.^ 

§  184.  But  the  want  of  protest  is  excused  by  proof,  that  the  de- 
fendant requested  that,  in  case  of  the  dishonor  of  the  bill,  no  pro- 
test should  be  made;  or,  that  the  defendant,  being  the  drawer, 
had  no  flinds  in  the  drawee's  hands,  or  had  no  right  to  draw  the 
bill ;  or,  that  the  protest  was  prevented  by  inevitable  casualty, 
or  by  superior  force.*  So,  if  the  defendant  has  admitted  his  lia- 
bility, by  a  partial  payment,  or  a  promise  to  pay,  a  protest  need 
not  M  proved.^ 

§  185.  In  regard  to  inland  hills,  a  protest  is  not  in  general  ne- 
cessary to  be  proved,  unless  it  is  made  so  by  the  local  municipal 
^aw.^ 

§  186.  In  an  action  against  the  drawer  of  a  bill,  or  the  indorser 
of  a  bill  or  note,  it  is  also  necessary  for  the  plaintiff  to  prove,  that 
the  defendant  had  due  notice  of  the  disJionor  of  the  bill  or  note.  To 
constitute  a  sufficient  notice,  it  must  contain  such  a  description  of 
xiG  bill  or  note  as  will  serve  to  identify  it,  to  the  understanding  of 
die  party  addressed ;  and  must  state  in  substance,  or  by  natural 
implication,  that  it  has  been  presented  for  acceptance  or  payment, 
as  the  case  may  be,  and  has  been  dishonored ;  and,  where  a  pro- 
test is  by  law  or  usage  required,  that  it  has  been  protested.'^     And 

1  Lenox  ».  Leverett,  10  Mass.  1;  Chit-  ren,  Id.  259  ;  [*  Ticonic  Bank  v.  Stackpole, 
ty  &  Hulme  on  Bills,  pp.  445,  655  (9th  41  Maine,  302.]  Connedicvt  Rev.  Stat, 
edit.).  1849,  tit.  1,  §  128;   Texas,  Hartley,  Dig. 

2  Townsley  v.  Sumrall,  2  Peters,  R.  Art.  2532,  Stat.  March  20,  1848,  §  5. 
170;  Halliday  r.  McDougall,  20  Wend.  [Although  the  statute  of  a  State  may  make 
85  ;  Grafton  Bank  v.  Moore,  14  N.  Hamp.  a  notary's  certificate,  as  to  demand  and 
142.  The  United  States  are,  in  this  re-  notice,  legal  proof  of  the  facts  which  it  em- 
spect,  foreign  to  each  other.  Williams  v.  braces  in  the  courts  of  that  State,  yet  it  is 
Putnam,  14  N.  Hamp.  540.  not   admissible  in    the  courts  of  another 

8  Chesmer  v.  Noyes,    4    Carapb.   129;  State,  where  its  admission  would  supersede 
Marin  v.  Palmer,  6  C.  &  P.  466.    In  some  its  own   rules   of  evidence.     Kirtland  v. 
of  the  United  States,  the  certificate  of  the  Wanser,  2  Duer,  N.  Y.  278.] 
notary,  under  his  hand  and  official  seal,  is,  *  Story  on  Bills,  §§  275,  280  ;  Chitty  & 
by  statute,  made  competent  evidence,  prima  Hulme  on  Bills,  p.  452. 
_/ac/e,  of  the  matters  by  him  transacted,  in  ^  Gibbon   v.    Coggon,    1    Campb.  188; 
relation  to  the  presentment  and  dishonor  Taylor  t;.  Jones,  Id.  105;  Chitty  &  Hulme 
of  the   bill,   and   of  notice  thereof  to  the  on  Bills,  pp.  456  655  (9th  edit.) ;  Camp- 
parties  liable.     LL.  Neiu  York,  1833,  ch.  bell  v.  Webster,  9  Jur.  992. 
271,    §   8;  Smith  v.  McManus,    7    Yerg.  »  Story  on  Bills,  §  281. 
477;    LL.   Mississippi,    1833,   ch.    70;    2  7  See  Story  on  Bills,  §§  301,390  ;  Story 
Kent,  Coram.  93,  note;  Rev.  LL.  Maine,  on  Promissory  Notes,  §§  348-354.    Notice 
ch.  44,  §  12  ;  Beck  with  v.  The  St.  Croix  to  the  indorser  of  a  foreign  bill,  that  the 
Man.  Co.,  10  Shcpl.  284.     See  also  Clark  biU   describing  it,   has   been  protested  for 
V.  Bigelow,  4  Shepl.  246 ;  Warren  v.  War-  non-payment,  and  that  the  holder  looks  to 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMSSORY  NOTES. 


163 


if  the  notice  proceeded,  as  it  now  seems  it  may  in  some  cases,  from 
a  person  who  was  not  at  that  time  the  holder  of  the  bill,  it  must 
clearly  intimate  that  the  party  addressed  is  looked  to  for  payment.^ 
But  if  it  proceeded  from  the  holder,  the  American  courts  do  not 
require  any  formal  declaration  to  that  effect,  it  being  the  natural 
inference  from  the  nature  of  the  notice.^  It  must  appear  that  the 
notice  was  given  within  a  reasonable  time  after  the  dishonor,  and 
protest,  if  there  be  one,  and  that  due  diligence  was  exercised  for 
this  purpose.  When  the  facts  are  ascertained,  the  question  wheth- 
er they  prove  due  diligence,  or  notice  within  reasonable  time,  is  a 
question  of  law.^  Where  this  reasonable  time  is  positively  fixed 
by  the  law  of  the  particular  country,  it  must  be  strictly  followed. 
Thus,  though  the  protest  must  be  made  according  to  the  law  of 
the  place  of  acceptance,  yet  notice  to  the  drawer  must  be  given 
according  to  the  law  of  the  place  where  the  bill  was  drawn,  and  to 
the  indorsers,  according  to  the  law  of  the  place  where  the  indorse- 
ments were  respectively  made.*  In  other  cases,  the  reasonableness 
of  the  time  of  notice  depends  on  the  particular  circumstances  of 


him  for  payment  thereof,  is  sufficient  notice 
of  dishonor ;  the  term  protested,  when  thus 
used,  imph-ing  that  payment  had  been  de- 
manded and  refused.  Spies  v.  Newbury, 
2  Doug.  (Mich.)  R.  42.5.  So,  where  the 
notice  merely  stated  that  the  bill  was  due 
and  unpaid,  requesting  immediate  payment 
of  the  amount ;  adding  thus,  —  "  Amount 
ofbill,  £98  15s.,  noting  5s."  ;  it  was  held, 
that  the  word  "  noting "  implied  present- 
ment, and  non-payment,  and  rendered  the 
notice  sufficient.  Armstrong  i'.  Chris- 
iiani,  17  Law  Jour.  181,  C.  P.  5  M.  G.  & 
S.  687.  See,  for  other  examples,  Bromage 
V.  Vaughan,  9  Ad.  &  El.  608,  N.  S. ; 
Chard  v.  Fox,  13  Jur.  960;  Caunt  v. 
Thompson,  Id.  495  ;  D'Wolf  y.  Murray,  2 
Sandf.  S.  C.  R.  166.  [Where  the  indorsee 
of  a  note  was  dead,  a  notice  of  its  dishonor 
sent  by  mail,  directed  "  to  the  Estate  of  H. 
O.,  deceased,"  was  held  not  sufficient  to 
charge  the  executor,  there  being  no  pi-oof 
that  such  notir"e  was  received  by  the  exec- 
utor, and  the  holder  not  ha\ing  used  due 
diligence  to  learn  the  executor's  name. 
The  notice  should  be  given  to  the  exec- 
utor or  administrator,  but  if  the  holder 
does  not  know,  and  cannot,  by  reasonable 
diligence,  know  whether  there  is  one,  or 
who  he  is,  or  where  he  resides,  he  is  ex- 
cused from  gi\ing  the  notice.  Massa- 
chusetts Bank  v.  Oliver,  10  Cush.  557. 
See  also  Brailsford  v.  Hodgeworth,  15 
Md.  150.  [*It  is  sufficient  if  one  of  sev- 
eral administrators  or  executors  of  a  de- 


ceased indorser  receive  notice  of  protest. 
Beals  V.  Peck,  12  Barb.  245.  A  statement 
in  a  protest  that  a  bill  was  presented  to 
the  secretary  of  a  banking  company  is  a 
sufficient  allegation  that  it  was  presented 
at  the  place  of  business  of  such  company. 
Barbaroux  v.  Waters,  3  Met.  (Ky.)  304. J 

1  East  V.  Smith,  11  Jur.  412;  4  DowL 
&  L.  744. 

2  Bank  of  United  States  v.  Carneal,  2 
Pet.  543,  553  ;  Story  on  Promissory  Notes, 
§  354  ;  Mills  v.  Bank  of  United  States,  11 
Wheat.  431,  437.  And  the  same  view  is 
taken  by  Coleridge,  J.,  in  East  v.  Smith, 
11  Jur.  412;  16  Law  Jour.  N.  S.  292. 
The  holder  of  a  bill  may  take  advantage 
of  a  notice  of  dishonor,  given  by  any  per- 
son who  is  himself  liable  to  be  sued  on  the 
bill ;  if  it  were  given  in  sufficient  time  to 
maintain  an  action  in  fevor  of  such  party. 
Harrison  v.  Ruscoe,  15  M.  &  W.  231,  10 
Jur.  142;  Lysaght  v.  Bryant,  19  Law  J. 
160;  2  C.  &  K.  1016. 

^  Bank  of  Columbia  v.  Lawrence,  1  Pet. 
S.  C.  R.  578,  583 ;  Carrol  v.  Upton,  3 
Comst.  272. 

*  Storv  on  Bills,  §§  284,  285,  382  -  385  ; 
Chitty  &'Hulme  on  Bills,  p.  167  -  171  (9th 
edit.).  A  promissory  note,  payable  by  in- 
stalments, is  negotiable,  and  the  indorser 
is  entitled  to  a  presentment  upon  the  last 
day  of  grace  after  each  day  of  payment, 
and  to  notice,  if  each  particular  instalment 
is  not  paid  when  due  Oridge  v.  Sher 
borne,  Tl  M.  &  W.  374. 


164  LAW   OF   EVIDENCE.  [PART  IV 

each  case  ;  but  in  general  it  may  be  remarked,  that  where  there  is 
a  regular  intercourse  carried  on  between  the  two  places,  whether 
by  post  or  by  packet-ships,  sailing  at  stated  times,  the  notice  should 
be  sent  by  the  next  post  or  ship,  after  the  dishonor  and  protest,  if 
a  reasonable  time  remains  for  writing  and  forwarding  the  notice ; 
and  where  there  are  none  but  irregular  communications,  that 
which  is  most  probably  and  reasonably  certain  and  expeditious 
should  be  resorted  to.^  If  the  usual  mercantile  intercourse  is  by 
post  or  mail,  that  mode  alone  should  be  adopted,  though  others 
may  concurrently  exist.^  But  whatever  be  the  mode  of  notice, 
the  time  of  its  transmission  should  be  proved  with  sufficient  pre- 
cision ;  for,  where  a  witness  testified  that  he  gave  notice  in  two  or 
three  days  after  the  dishonor,  notice  in  two*  days  being  in  time, 
but  notice  on  the  third  day  being  too  late,  it  was  held  not  suffi- 
cient evidence  to  go  to  the  jury,  and  the  plaintiff  was  non-suited ; 
for  the  burden  of  proof  of  seasonable  notice  is  on  him.^ 

§  186  a.  If  the  bill  or  note  has  been  received  by  the  holder 
merely  as  a  collateral  security,  the  party  from  whom  he  received  it 
being  neither  drawer  nor  indorser,  nor  the  transferrer  of  it  by  de- 
livery, if  payable  to  the  bearer,  the  holder  is  not  bound  to  prove  a 
strict  presentment  of  the  bill  or  note ;  nor  will  the  other  party  be 
exonerated  from  the  debt  collaterally  secured  by  the  delivery  of 
such  bill  or  note,  unless  he  can  show  that  he  has  actually  sus- 
tained some  damage  or  prejudice  by  such  non-presentment.  And 
the  same  rule  applies  to  a  party  who  is  a  mere  guarantor  of  a  bill 
or  note ;  the  burden  of  proof  being  in  both  these  cases  on  the  debt- 
or, or  the  guarantor,  to  show  an  actual  loss,  or  prejudice  to  his 
remedy  over.^ 

§  187.  Where  the  notice  is  sent  by  post,  it  need  not  be  sent  on 
the  day  of  dishonor,  but  it  should  go  by  the  next  jJracticable  post 
after  that  day,  having  due  reference  to  all  the  circumstances  of  the 
case.^     But  if  the  action  is  commenced  on  the  same  day  on  which 

1  Story  on  Bills,  §§  286,  382,  383.  No-  frey,  5  M.  &  G.  559  ;  Oxford  Bank  v. 
tice,  sent  by  the  post,  will  be  considered  as  Hayes,  8  Pick.  423;  Talbot  v.  Gay,  18 
notice  from  the  time  at  which,  by  the  reg-  Pick.  534  ;  Gibbs  v.  Cannon,  9  S.  &  R. 
ular  cour.se  of  the  post,  it  onght  to  be  re-  202 ;  Phillips  v.  Astling,  2  Taunt.  206. 
ceived.  Smith  v.  Bank  of  Washington,  5  Where  notice  to  a  guarantor  is  requisite, 
S.  &  R.  385.  it  will  be  seasonable  if  given  at  any  time 

2  Ibid.,  §§  287,  382,  383.  before  action  brought,  if  he  has  not  been 

3  Lawson  v.  Sherwood,  1  Stark.  R.  314.  prejudiced  by  the  want  of  earlier  notice. 
[See  Brailsford  v.  Hodgeworth,  15  Md.  Ibid.;  Babcock  v.  Bryant,  12  Pick.  133; 
150.]  Salisbury   v.   Hale,   Id.   416;    Walton   i;. 

*  Story  on  Bills,  §  372  ;  Story  on  Prom-     Mascall,  13  M.  &  W.  72. 
Issory  Notes,  §  41^5 ;  Hitchcock  v.   Hum-        ^  If  the  notice  be  put  in  the  post-office 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMISSORY  NOTES.  165 

the  notice  is  sent,  (as  it  well  may  be,^)  the  burden  of  proof  being 
on  the  plaintiff  to  show  that  the  right  of  action  was  complete  before 
the  suit  was  commenced,  he  must  prove,  not  only  that  the  notice 
was  sent,  but  that  it  reached  its  destination  before  process  was 
sued  out.  For  the  rule  of  law  is,  that  where  there  is  a  doubt 
which  of  two  occurrences  took  place  first,  the  party  who  is  to  act 
upon  the  assumption  that  they  took  place  in  a  particular  order,  is 
to  make  the  inquiry .^  The  same  rule  applies  to  successive  indors- 
ers  ;  each  one  being  generally  entitled  to  at  least  one  full  day  after 
he  has  received  the  notice,  before  he  is  required  to  give  notice  to 
any  antecedent  indorser,  who  may  be  liable  to  him  for  payment 
of  the  bill  or  note.^  Sunday,  not  being  a  business  day,  is  not  taken 
into  the  account,  and  notice  on  Monday,  of  a  dishonor  on  Satur- 
day, is  sufficient.* 

§  187  a.  If  the  bill  or  note  has  been  transmitted  to  an  agent  or 
hanker,  for  the  purpose  of  obtaining  acceptance  or  payment,  he 
will  be  entitled  to  the  same  time,  to  give  notice  to  his  principal  or 
customer,  and  to  the  other  parties  to  the  instrument,  as  if  he  were 
himself  the  real  holder,  and  his  principal  or  customer  were  the 
party  next  entitled  to  notice ;  and  the  principal  or  customer  will 
be  entitled,  after  such  notice,  to  the  like  time,  to  give  notice  to  the 
antecedent  parties,  as  if  he  received  notice  from  a  real  holder,  and 
not  from  his  own  banker  or  agent.  In  short,  in  all  such  cases,  the 
banker  or  agent  is  treated  as  a  distinct  holder.^  And  a  central  or 
principal  bank,  and  its  different  branches,  are  also  treated  as  dis- 
tinct holders,  in  regard  to  bills  and  notes  transmitted  from  the  one 
to  the  other  for  presentment  or  collection.^ 

§  188.  If  the  parties  reside  in  or  near  tlie  same  town  or  place 
jvhere  the  dishonor  occurs,  the  notice  whether  given  verbally,  or 
)y  a  special  messenger,  or  by  the  local  or  penny  post,  should  be 

in  due  time,  the  holder  of  the  bill  or  note  Pillsbury,  1 1  Shepl.  458.  And  if  there 
is  not  prejudiced,  if,  through  mistake  or  are  two  post-offices  in  the  sa.ne  town,  no- 
delay  of  the  post-office,  it  be  not  delivered  tice  sent  to  either  is,  prima  facie,  sufficient. 
in  due  time.  Woodcock  v.  Houldsworth,  Storv  on  Bills,  §  297  ;  Yeatman  v.  Erwin, 
16M.  &W.  124.  3   Miller's  (Louis.)  R.  264.     S^    "•■    notice 

1  Greely  v.  Thurston,  4  Greenl.  479.  sent  to  any  post-office,  to  whir'    cne  party 

2  Castrique  v.  Bernabo,  6  Ad.  &  El.  498,  usually  resorts  for  letters.     Bank  of  Ge- 
N.  S.  neva  v.    Howlett,  3  Wend.  328  ;  Eeid  v. 

8  Story  on  Bills,  §§  288,  291,  297,  298,  Paine,  16   Johns.   218;  Cuyler  v.   Nellis, 

384,  38.5  ;  Bayley  on  Bills,  pp.  268,  270  4  Wend.  398. 

(.5th  ed.);  Ch'itty  &  Hulme  on  Bills,  pp.         *  Eagle  Bank  v.  Chapin,  3  Pick.  180; 

337,  482  (9th  edit).    If  there  are  two  mails  Story  on  Bills,  §§  288,  293,  308,  309. 
on  the  same  day,  notice  by  the  latest  of         ^  Story  on  Bills,  §  292 ;  Story  on  Prom- 

them  is  sufficient.     Whitwell  v.  Johnson,  issory  Notes,  §  326. 
17  Mass.   449,   454.     See   also    Chick  v.        6  ciode  v.  Bayley,  12  M.  is  W.  51 


166 


LAW   OF  EVIDENCE. 


[part  IV 


given  on  tlie  day  of  the  dishonor,  or,  at  farthest,  upon  tlie  following 
day,  early  enough  for  it  to  be  actually  received  on  that  day.^  But 
where  both  parties  reside  in  the  same  town  or  city,  the  rule  is, 
that  the  notice  must  be  personal ;  that  is,  must  be  given  to  the 
individual,  in  person,  or  be  left  at  his  domicile  or  place  of  busi- 
ness ;  for  in  such  case  it  is  not  competent  for  the  holder  to  put  a 
letter  into  the  post-office  and  insist  upon  that  as  a  sufficient  notice, 
unless  he  also  proves  that  it  did  in  fact  reach  the  other  party  in 
due  season  ;  for  it  will  not  be  presumed.^  And  a  custom  among 
the  notaries  of  a  city  to  give  notice  in  such  cases  through  the  post- 
office,  will  not  control  this  rule.^  But  a  by-law  or  usage  of  a  bank, 
establishing  this  mode  of  giving  notice,  will  bind  parties  to  bills  or 
notes  made  payable  to  such  bank.* 


1  Story  on  Bills,  §  289;  Chitty  & 
Hnlme  on  Bills,  pp.  337,  472,  473  (9th 
edit.);  Grand  Bank  v.  Blanchard,  23 
Pick.  305 ;  Seaver  v.  Lincoln,  21  Pick. 
267. 

2  Story  on  Promissory  Notes,  §  322  ; 
Eagle  Bank  v.  Hathaway,  5  Met.  215; 
Peirce  v.  Pendar,  Id.  352 ;  3  Kent,  Coram. 
107  (5th  edit.) ;  1  Hare  &  Wallace's 
Leading  Cases,  p.  254.  In  respect  to  this 
rule,  the  term  "  holder  "  includes  the  bank 
at  which  the  note  is  payable,  and  the  notary 
who  may  hold  the  note  as  the  agent  of  the 
owner,  for  the  purpose  of  making  demand 
and  protest.  Bowling  v.  Harrison,  6 
How.  S.  C.  Rep.  248 ;  [Phipps  v.  Chase, 
6  Met.  492  ;  Phipps  v.  Milbury  Bank,  8 
lb.  79.  Whether  the  rule  stated  in  the 
text  may,  perhaps  under  peculiar  circum- 
stances, admit  of  exceptions,  giutre.  See 
Cabot  Bank  v.  Russell,  4  Gray,  169,  by 
Shaw,  C.  J.  In  a  large  commercial  city 
where  the  parties  live  within  the  limits  of 
a  penny-post,  by  which  the  party  to  whom 
a  notice  is  to  be  given,  is  accustomed  to 
receive  his  letters,  a  notice  deposited  in  the 
post-office,  is  sufficient.  Walters  v.  Brown, 
15  Md.  285.] 

8  Wilcox  V.  McNutt,  2  How.  (Miss.)  R. 
776. 

*  Renner  v.  Bank  of  Columbia,  9  Wheat. 
581  ;  Jones  v.  Pales,  4  Mass.  245  ;  1  Hare 
&  Wallace's  Leading  Cases,  pp.  254  -  256 ; 
Chicopce  Bank  v.  Eager,  9  Met.  583. 
["A  difficulty  arises  where  the  domicile  or 
place  of  business  of  the  indorser  is  doubt- 
ful or  uncertain ;  where  there  are  several 
post-offices  in  the  same  town  ;  where  the 
indorser  is  nearer  the  post-office  of  a  town 
other  than  the  one  in  which  he  resides ; 
where  he  is  accustomed  to  receive  his  let- 
ters at  one  post-office  or  at  several  diffi;rent 
ones,  in  the  same  or  another  town.     The 


nearest  approximation  to  a  general  rule 
to  be  deduced  from  the  cases  seems  to  be 
this,  —  that  whenever  circumstances  of  the 
foregoing  nature  exist,  to  take  the  case  out 
of  the  ordinary  one  of  a  fixed  and  known 
residence  of  the  indorser  and  a  regular 
mail  to  the  established  post-office  of  such 
place,  it  is  the  duty  of  the  holder  or  of  the 
notary,  or  other  officer  or  agent  employed 
by  him,  to  make  reasonable  inquiries  at 
the  proper  sources,  to  ascertain  the  resi- 
dence or  place  of  business  of  the  indorser ; 
at  what  post-office,  one  or  more  in  the 
same  or  another  town,  he  is  accustomed  to 
receive  his  letters  ;  and  in  the  absence  of 
such  information,  to  find  out  the  post- 
office  nearest,  or  in  some  other  respect 
most  convenient  to,  his  residence ;  and 
then  address  and  forward  the  notice  by 
such  mail  and  to  such  post-office  as  that 
it  would  be  most  likely  to  reach  him  cer- 
tainly and  promptly."  By  Shaw,  C.  J., 
in  Cabot  Bank  v.  Russell,  4  Gray,  169, 170. 
Where  there  are  two  post-offices  in  a  town, 
notice  by  letter  to  an  indorser,  addressed 
to  him  at  the  town  generally,  is  sufficient, 
unless  the  party  has  been  generally  accus- 
tomed to  receive  his  letters  at  one  of  the 
offices  in  particular.  The  plaintifl'  makes 
out  a,  prima  facie  case  by  proving  notice  by 
letter  addressed  to  the  defendant  at  the 
town  generally.  The  defendant  may  re- 
but this  by  showing  that  he  usually  re- 
ceives his  letters  at  one  office  only,  and 
that  this  might  have  been  known  by  rea- 
sonable inquiry  at  the  place  where  the 
letter  was  mailed.  Morton  v.  Westcott, 
8  Cush.  427.  See  also  Manchester  Bank 
V.  White,  10  Foster  (N.  H.),  456;  Man- 
chester Bank  v.  Fellows,  8  lb.  302  ;  Wind- 
ham Bank  v.  Norton,  22  Conn.  213  ;  [*  A 
notice  addressed  to  "  Mrs.  Susan  Collins, 
Boston,"  \s  prima  facie  sufficient  to  charge 


PART  IV.]        BILLS   OF  EXCHANGE   AND   PROMISSORY  NOTES.  167 

§  189.  It  will  be  sufficient  if  the  note  or  bill  described  in  the 
notice,  substantially  corresponds  with  that  described  on  the  record. 
A  variance  in  the  notice,  to  be  fatal,  must  be  such  as  conveys  to 
the  party  no  sufficient  knowledge  of  the  particular  note  or  bill, 
which  has  been  dishonored.  If  it  does  not  mislead  him,  but  con 
veys  to  him  the  real  fact  without  any  doubt,  the  variance  cannot 
be  material,  either  to  guard  his  rights,  or  to  avoid  his  responsibili 
ty.^  Thus,  where  the  written  notice,  given  on  the  22d  of  Septem- 
ber, described  the  note  as  dated  on  the  20th  of  the  same  month 
payable  in  sixty  days,  whereas  in  fact  it  bore  date  on  the  20th  of 
July,  but  it  appeared,  that  there  was  no  other  note  between  the 
parties,  this  was  held  sufficient,  the  note  being  otherwise  correctly 
described.^  So,  where  the  bill  was  payable  at  the  London  Joint- 
Stock  Bank,  but  in  the  notice  it  was  described  as  payable  at  the 
London  and  Westminster  Joint-Stock  Bank,  which  was  shown  to  be 
a  different  bank,  yet  it  was  held  sufficient.^  So,  where  there  was 
but  one  note  between  the  parties  to  which  the  notice  could  apply, 
but  the  sum  was  erroneously  stated  in  the  notice,  it  was  held  suffi- 
cient.* And  in  such  cases,  the  question  is  for  the  jury  to  deter- 
mine, whether  the  defendant  must  or  may  not  have  known  to  what 
note  the  notice  referred.^ 

§  190.  The  plaintiff,  however,  need  not  prove  notice  of  the 
dishonor  of  a  bill  or  note  if  the  defendant  has  waived  his  right 
to  such  notice,  or  has  admitted  it.  This  may  be  shown,  not  only 
by  an  express  waiver,  or  admission,  but,  as  against  the  drawer, 
it  may  be  inferred  from  circumstances  amounting  to  it,  such  as 
an  express  promise  to  pay  the  amount  of  the  bill  or  note,  even 
though  conditional  as  to  the  mode  of  payment ;  or,  a  partial 
payment ;  or,  any  acknowledgment  by  the  drawer,  of  his  liability 
to  pay.®    But  the  promise  or  partial  payment,  to  have  this  effect, 

her  as  an  indorser,  if  she  lived  in  Boston.  Ready  v.  Seixas,  2  Johns.  Cas.  337.     [See 

True  V.  Collins,  3  Allen,  438.]  also  Housatonic  Bank  v.  Laflin,  5  Cash. 

i  Mills  V.  Bank  of  the  United  States,  II  546  ;  Crocker  v.  Getcholl,  10  Shep.  392  ; 

Wheat.  431,  435 ;  Saltmarsh  v.  Tutliill,  13  Wheaton  v.  Wilmarth,  13  Met.  422  ;  Clark 

Ala.  390.  V.  Eldridge,  lb.  96  ;  Cayuga  Co.  Bank  v. 

2  Mills  y.  Bank  of  the  United  States,  11  Warden,  1    Comst.   413;    Dennistoun   v. 

Wheat.  431,  435.  Stewart,  17  How.  U.  S.  606;    Younges  v. 

8  Bromage   v.   Vaughan,    10  Jur.  982.  Lee,    18   Barb.  (N.    Y.)    187;  Shelton  v. 

See  also  Bailey  v.  Porter,  14  M.  &  W.  44 ;  Braithwaite,  7  M.  &  W.  436  ;  Stockman 

Rowlands  v.  Springett,  Id.  7  ;  9  Jur.  356.  v.  Parr,  11  lb.  809.] 

*  Bank  of  Alexandria  v.  Swann,  9  Pet.         •>  Story   on   Bills,   §   320 ;  Hopkins  v. 

33,46,47;  Stockman  v.  Parr,  I  C.  &  K.  Liswell,    12    Mass.     52.       Thompson    v. 

41,  II  M.  &  W.  809.  Wynn,  12  Wheat.   183;  Martin  v.  Inger- 

6  Smith  V.  Whiting,  12  Mass.  6  ;  Bank  soil,  8  Pick.  1  ;  Creamer  v.  Perry,  17  Pick. 

of   Rochester    v.   Gould,   9    Wend.  279;  332;  Central  Bank  i>.  Davis,  19  Pick.  373  ' 


168  LAW   OF  EVIDENCE,  [PART  IV. 

must  be  made  with  a  full  knowledge  of  all  the  facts,  must  be 
unequivocal,  and  amount  to  an  admission  of  the  right  of  the 
holder.^  So,  the  acceptance,  bj  the  indorser,  of  adequate  collat- 
eral security  from  the  maker,  or  accepting  an  assignment  of  all 
the  maker's  property,  for  this  purpose,  though  it  be  inadequate, 
has  been  held  a  waiver  of  notice,  if  taken  before  the  maturity 
of  the  note ;  ^  but  not  if  taken  afterwards.^  Nor  is  an  assignment 
of  property  to  trustees,  for  the  security,  among  others,  of  an 
indorser,  sufficient  to  dispense  with  proof  of  a  regular  demand 
and  notice.*  And  even  an  express  waiver  of  notice,  will  not 
amount  to  a  waiver  of  a  demand  on  the  maker  of  the  note.^  A 
known  usage  may  also  affect  the  general  law  on  this  subject. 
Thus,  if  a  note  is  made  payable  at  a  particular  bank,  the  usage 
of  that  bank,  as  to  the  mode  and  time  of  demand  and  notice,  will 
bind  the  parties,  whether  they  had  knowledge  of  it  or  not ;  and 
if  the  note  is  discounted  at  a  bank,  its  usages,  known  to  the 
parties,  are  equally  binding.^ 

§  190  a.  Proof  of  notice  will  also  be  dispensed  with,  where  it 
was  morally  or  physically  impossible  to  give  it ;  as,  by  the  abscond- 
ing of  the  party,  or  where  the  holder  was  justifiably  ignorant  of 
the  place  of  his  abode  ;  or,  by  the  general  prevalence  of  a  malig- 
nant disease ;  or  the  sudden  illness  or  death  of  the  holder ;  or  any 
other  inevitable  casualty  or  obstruction.  The  omission  of  notice 
is  also  excused,  where  the  holder  of  the  bill  stands  in  the  relation 
of  an  accommodation  holder  or  indorser  to  the  drawer  or  other 

Warden  v.  Tucker,  7  Mass.  449 ;  Boyd  v.  holder,  is  inadmissible.      Hartley's   Dig. 

Cleaveland,  4  Pick.  525  ;  Farmer  v.  Eand,  art.  2526.     [*  A  letter  from  the  maker  of 

2   Shepl.  225  ;  Ticonic  Bank  v.  Johnson,  a  note  before  it  is  due,  stating  his  inability 

8  Shepl.    426  ;  Levy  v.  Peters,  9  S  &  R.  to  pay,  and  asking  for  an  extension  of  the 

125  ;  Fuller  v.  McDonald,  8  Greenl.  213  ;  time  of  payment,  will  not  excuse  the  want 

Chitty&HulmeonBills,  p.  660  (9th  edit.) ;  of    a    demand.      Pierce   v.    Whitnev,    29 

Lawrence  v.  Ralston,  3  Hibb.  102  ;  Ritch-  Maine,  188.     But  an  agreement  to  extend 

er  V.   Selin,  8    S.    &  R.  438  ;  Pierson  v.  the  time  of  payment  by  an  indorser,  or  a 

Hooker,  3  Johns.   71  ;  Campbell  v.  Web-  request  for  delay  and  a  promise  to  pay, 

ster,  2  M.  G.  &  S.  258,  and  cases  there  after   maturity,   is   a   waiver  of    demand 

cited.     Walker   v.   Walker,    2   Eng.  542.  and  notice.      Ridgway  v.  Day,  13  Penn. 

[*  Washer  v.  White,  16  Ind.  136.]   Wheth-  208.] 

er  the  evidence  establishes  the  flict  of  a  wai-  ^  Ibid. 

ver,  or  admir^sion,  is  a  question  for  tlie  jury.  ^  Bond  v.  Farnham,  5  Mass.  70;  An- 

Union  Bank  of  Georgetown  v.  Magrudcr,  drews  v  Boyd,  3  Met.  434  ;  Mead  v.  Small. 

7  Pet.  287.     Parol  evidence  of  statements  3  Greenl.  207. 

verbally  made  by  the  indorser,  at  the  time  ^  Tower  v.  Durell,  9  Mass.  332. 

of  a  blank  indorsement  of  a  note,  though  *  Creamer  v.  Perry,  17  Pick.  332. 

not  admissible  to  vary  the  contract  wliich  ^  Berkshire  Bank  v.  .Jones,  6  Mass.  524; 

tlie  law  implies  from  the  indorsement,  arc  Backus  v.  Shepherd,  1 1  Wend.  629. 

admissible  to  show  a  waiver  of  a  demand  **  Lincoln  &  Kennebec  Bank  i\  Page,  9 

and    notice.      Sanborn   v.    Southard,    12  Mass.  155  ;  Blanchard  ?'.  Hilliard,  11  Mass. 

Shepl.  499.     In  Totms,  parol  evidence  of  a  85;  Smith  y.  Whiting,  12  Mass.  6;  City 

(vaiver  of  the  right  to  du".  diligence  in  the  Bank  v.  Cutter,  3  Pick.  414. 


PART  IV.]       BILLS   OF  EXCHANGE  AND   PROmSSORY  NOTES.  169 

indorser,  the  latter  being  the  real  debtors.  So,  if  the  drawer 
of  a  bill  had  no  right  to  draw,  and  no  reasonable  ground  to 
expect  that  the  bill  would  be  honored  by  the  drawee ;  as,  if 
he  had  drawn  it  without  funds  in  the  hands  of  the  drawee,  jr 
any  expectation  of  funds  in  his  hands  to  meet  it,  or  any  arrange- 
ment or  agreement  on  his  part  to  accept  it;  for  in  these  cases 
he  would  have  no  remedy  'w^ainst  any  one  in  consequence  of  thO 
dishonor  of  the  bill.  Bu  if  he  were  a  mere  accommodati  ju 
drawer,  or  would  be  entitled  to  some  remedy  over  against  5ome 
other  party,  or  would  otherwise  be  exposed  to  loss  and  damage, 
he  is  entitled  to  notice.  So,  if  having  funds  in  the  hands  of  the 
drawee,  or  on  the  way  to  him,  the  drawer  has  withdrawn,  or 
stopped  them,  no  proof  of  notice  is  requisite.  Nor  is  it  required 
in  an  action  against  the  indorser  of  a  bill  or  note,  where  he  is  the 
real  debtor,  for  whose  accommodation  the  instrument  was  created, 
and  no  funds  have  been  provided  in  the  hands  of  other  parties  for 
its  payment.  Nor,  where,  being  an  accommodation  indorser,  he 
has  received  funds  sufficient  for  the  payment  of  the  bill  or  note 
in  full,  and  to  secure  him  an  ample  indemnity.  Nor,  where,  by 
arrangement  between  any  of  the  parties,  the  necessity  of  notice 
has  been  expressly  or  impliedly  dispensed  with.^ 

§  191.  If  the  notice  has  been  given  hy  letter  or  other  writing ^ 
it  is  now  held,  that  secondary  evidence  of  the  contents  of  the 
letter  or  writing  is  admissible,  without  any  previous  notice  to 
the  defendant  to  produce  the  original ;  for  the  rule,  which  requires 
proof  of  notice  to  produce  a  paper,  in  order  to  let  in  secondary 
evidence  of  its  contents,  is  not  capable  of  application  to  that, 
which  is  itself  a  notice,  without  opening  an  interminable  inquiry.''^ 
But  where  the  secondary  evidence  is  uncertain  or  doubtful,  or 
without  sufficient  precision  as  to  dates  or  the  like,  it  is  always 
expedient  to  give  due  notice  to  the  defendant  to  produce  the 
paper.  And  whenever  notice  to  produce  a  paper  is  given,  it 
should  particularly  specify  the  writing  called  for.^ 

1  Story  on  Bills,  §§308-317.  Story  on  2  gee  ante,  Vol.  1,  §  561;  Chitty  & 
Promissory  Notes,  §§  355-357.  Knowl-  Hulme  on  Bills,  pp.  656,  65"  (9th  edit.) 
edge  in  fiict  of  the  dishonor  of  a  bill,  where  Ackland  v.  Pierce,  2  Campb.  601  ;  Rob- 
the  drawer  is  himseif  the  p;rson  to  pay  it,  erts  v.  Bradshaw,  1  Stark.  R.  28  ;  Eagle 
as  executor  of  the  acceptor,  amounts  to  Bank  v.  Chapin,  3  Pick.  180;  Linden- 
notice.  Caunt  V.  Thompsin,  7  M.  G.  &  berger  v.  Beall,  6  Wheat.  104. 
S.  400,  6  D.  &  L.  621.  But  knowledge  ^  France  v.  Lucy,  Ry.  &  M.  341  ;  Jones 
of  the  probability,  howefjr  strong,  that  v.  Edwards,  1  M'CI.  &  Y.  139;  Morris  v. 
the  bill  will  be  dishonored,  is  not  sufficient  Hauser,  2  M.  &  Rob.  392;  ante,  Vol  1^ 
to  dispense  w'.th  notice.  ]  bid. ;  [FuUer  v.  §§  560  -  563  ;  Chitty  &  Hulme  on  Bills. 
Hoc  pel,  3  G..LJ,  334.]  pp.  657,  658. 


170  LAW   OP   EVIDENCE.  [PART  IV 

§  192,  But  the  rule  of  not  requiring  notice  to  produce  a  writ- 
ten notice  of  the  dishonor  of  a  bill  or  note,  is  restricted  to  the 
bill  or  note,  on  which  the  action  is  brought;  for  if  the  question 
is  upon  notice  of  the  dishonor  of  other  bills  or  notes,  notice  to  pro- 
duce the  letters  giving  such  notice  must  be  given  and  proved, 
as  in  ordinary  cases. ^  And  if  notice  to  produce  has  been  given, 
the  attorney  of  the  adverse  party  may  be  called,  to  testify  whether 
he  has  in  his  possession  the  paper  sought  for;  in  order  to  let 
in  secondary  evidence  of  its  contents.^ 

§  193.  When  notice  of  the  dishonor  of  a  bill  or  note  has  been 
given  by  letter,  it  will  in  general  suffice  to  show  that  a  letter,  con- 
taining information  of  the  fact,  and  properly  directed,  was  in  due 
time  put  into  the  proper  post-office,^  or  left  at  the  defendant's 
house.*  It  is  ordinarily  sufficient,  that  it  be  directed  to  the  town 
in  which  the  party  resides,  though  there  may  be  several  post- 
offices  in  it ;  unless  it  is  known  to  the  holder  that  he  usually 
receives  his  letters  at  a  particular  office ;  in  which  case  it  should 
be  directed  to  that  office ;  the  rule  being,  that  the  notice  should 
be  sent  to  the  place  where  it  will  be  most  likely  promptly  to  reach 
the  party  for  whom  it  is  intended.^  In  civil  cases,^  but  not  in 
cv\\mn^\^  i\\Q  postmarh  on  the  letter  will  be  su^ciQwi  prima  facie 
evidence  of  the  time  and  place  of  putting  it  into  the  post-office. 
And  if  there  is  any  doubt  of  the  genuineness  of  the  postmark,  it 
may  be  established  by  the  evidence  of  any  person  in  the  habit 
of  receiving  letters  with  that  mark,  as  well  as  by  a  clerk  in  the 
post-office.^  The  fact  of  sending  the  letter  to  the  post-office,  after 
evidence  has  been  given  that  it  was  written,  may  be  shown  by 
proof  of  the  general  and  invariable  course  of  the  plaintiff's  busi- 
ness or  office,  in  regard  to  the  transmission  of  his  letters  to  the 

1  Lanauze  i;.  Palmer,  1  M.  &  Malk.  31  ;  wood,  3  C.  &  P.  250 ;  Woodcock  v.  Houlds- 

Aflao  V.  Fourdrinier,  Ibid.  335,  n.  worth,   15  M.  &  W.  124.     It  is  not  neces- 

^  Bevan  v.  Waters,   1  M.  &  Malk.  235 ;  sary   that   the   notice   should    reach    the 

Chitty   &  Hulme   on   Bills,   p.   658  (9th  party  before  the  action  is  brouglit;  it  ia 

edit.).  sufficient  that  it  is  seasonably  sent.     New 

8  Lawson  v.  The  Farmers'  Bank  of  Sa-  England  Bank  v.  Lewis,  2  Pick.  128. 

lem,    (Supreme  Court  of  Ohio,  1853,)  1  ^  See  1  Hare  &  Wallace's  Leading  Cases, 

Am.  Law  Reg.  p.  617;  [ante,  %  188.]  pp.  256,   257,  and    the  authorities    there 

*  Chitty  &  Hulme  on  Bills,  p.  658  (9th  cited.     [Ante,  §  188.] 
edit.);    Story  on  Bills,  §§  297,  298,  300;  *>  Arcan^elo  v.   Thompson,   2   Campb. 
Shed  V.  Brett,  1  Pick.  401  ;  Hartford  Bank  623  ;  New  Haven  County  Bank  v.  Mitch- 
r.  Hart,  3  Day,  491.     Delivery  to  the  bell-  ell,  15  Conn.  206. 
man  is  .sutHcicnt.     Pack  v.  Alexander,  3  ^  Rex  v.  Watson,  1  Campb.  215. 
M.  &  Scott,  789.     And  any  delay  in  the  ^  Abbey  v.   Lill,  5   Bing.    299  ;  Wood- 
post-office   will  not  prejudice    the  holder  cock  v.  Houldsworth,  15  M.  &  W.  124. 
who  has  scut  the  notice.     Dobree  v.  East- 


PART  IV.]       BILLS   OF  EXCHANGE   AND  VROMISSOBY  NOTES.  17  J 

post-office,  with  the  testimony  of  all  the  persons,  if  living,  whoso 
duty  it  was  to  hand  over  the  letters,  or  to  carry  them  thither,  that 
they  invariably  handed  over,  or  carried  all  that  were  delivered  to 
them,  or  were  left  in  a  certain  place  for  that  purpose ;  and  if 
books  and  entries  were  kept  of  such  letters  sent,  they  should  be 
produced,  with  proof  of  the  handwriting  of  deceased  clerks,  who 
may  have  made  the  entries.  The  mere  proof  of  the  course  of  the 
office  or  business,  without  calling  the  persons  actually  employed, 
if  living,  will  not  ordinarily  suffice.^ 

§  194.  As  to  the  place  to  which  notice  may  be  sent,  this  may  be 
either  at  the  party's  counting-room,  or  other  place  of  business,  or 
at  his  dwelling-house ;  or  at  any  other  place  agreed  on  by  the 
parties.  And  if  a  verbal  notice  is  sent  to  the  place  of  business 
during  the  usual  business  hours,  and  no  person  is  there  to  receive 
it,  nothing  more  is  required  of  the  holder .^ 

§  195.  If  no  notice  of  dishonor  has  been  given,  or  no  present- 
ment or  protest  has  been  made,  the  plaintiflf  may  excuse  his  neglect 
by  proof  of  facts,  showing  that  presentment  or  notice  was  not 
requisite.^  Thus,  where  the  defendant  was  drawer  of  the  bill,  the 
want  of  presentment  is  excused  by  proving  that  he  had  no  effects 
in  the  hands  of  the  drawee,  and  no  reasonable  grounds  to  expect 
that  the  bill  would  be  honored,  from  the  time  it  was  drawn  until 
it  became  due.*  So  if,  having  funds  in  the  hands  of  the  drawee, 
or  on  the  way  to  him,  the  drawer  has  withdrawn  or  stopped  them.^ 
So,  the  want  of  notice  of  dishonor  is  excused,  in  an  action  against 
the  drawer,  by  proof  that  the  bill  was  accepted,  merely  for  the 
accommodation  of  the  drawer,  who  was  therefore  bound  at  all 
events  to  pay  it ;  and  this  fact  may  well  be  inferred  by  the  jury, 

1  Sturj^e  V.  Buchanan,  2  M.  &  Rob.  90 ;  *  Chitty  &  Hulme  on  Bills,  pp.  436,  437 
10  Ad.  &E1.  598,  S.  C.  ;  2  Per.  &  Dav.  (9th  ed.) ;  Story  on  Bills,  §§  308-317,329, 
573,  S.  C. ;  Hetherington  v.  Kemp,  4  367 -369  ;  Rucker  f.  Hiller,  16  East,  43  ; 
Campb.  193  ;  Toosey  v.  Williams,  1  M.  &  Legee  v.  Thorpe,  12  East,  171  ;  Bickerdike 
Malk.  129;  Chitty  &  Hulme  on  Bills,  p.  v.  Bollman,  1  T.  R.  405;  Hammond  v. 
659  (9th  ed.);  Hawkes  v.  Salter,  4  Bing.  Dufrene,  3  Campb.  145.  So  as  to  the 
715,  1  M  &  P.  750.  indorser  of  a  note.     Comey  i>.  Da  Costa, 

2  Chittv  &  Hulme  on  Bills,  p.  454  (9th  1  Esp.  302.  See  also  Campbell  v.  Petten- 
ed.)  ;  Crosse  v.  Smith,  1  M.  &  S.  545;  gill,  7  Greenl.  126;  French  v.  Bank  of 
Whitwell  V.  Johnson,  17  Mass.  449;  The  Columbia,  4  Cranch,  141 ;  Austin  v.  Rod- 
State  Bank  v.  Hurd,  12  Mass.  172;  Allen  man,  1  Hawks,  194  ;  Robinson  v.  Ames, 
V.  Edmonson,  2  C.  &  K.  547  ;  [ante,  §§  178  20  Johns.  146.  And  see  Dollfus  v.  Frosch. 
-180.]  1    Denio,  R.  367;    [Fuller  v.  Hooper,  3 

8  Where  a  note  is  payable  at  a  certain  Gray,  334.] 
place  and  on  demand  after  a  certain  time,         ^  Bayley  on  Bills,  296 ;  Story  on  Bills, 

no  averment  or  proof  of  a  demand  is  ne-  §    313  ;     [Fuller    v.    Hooper,    3     Gray- 

cessary  to  the  maintenance  of  the  action.  334.] 
Gammon  v.  Everett,  12  Shep.  66. 


172  LAW   OF  EVIDENOK  [PART  IV 

if  the  bili  is  made  payable  at  the  drawer's  own  house. ^  And  the 
want  of  effects  in  the  drawee's  hands,  he  being  the  drawer's 
banker,  may  be  shown  by  the  banker's  books ;  the  production 
and  verification  of  which  by  one  of  his  clerks  is  sufficient,  though 
the  entries  are  in  the  handwriting  of  several.^  Nor  is  proof  of 
notice  requisite  in  an  action  against  the  indorser  of  a  bill  or 
note,  where  he  is  the  real  debtor,  for  whose  accommodation 
the  instrument  was  created,  and  no  funds  have  been  provided 
in  the  hands  of  other  parties  for  its  payment.^  So,  if  the  holder 
was  ignorant  of  the  drawer'' s  residence.^  this  excuses  the  want  of 
notice  to  him,  if  he  has  made  diligent  inquiry  for  the  place 
of  his  residence ;  of  which  fact  the  jury  will  judge.^  So,  if  the 
notice  was  sent  to  the  wrong  person.,  the  mistake  having  arisen 
from  indistinctness  in  the  drawer's  writing  on  the  bill ;  ^  or  if 
the  drawer  verbally  waives  the  notice,  by  promising  to  pay  the 
bill,  or  to  call  and  see  if  the  bill  is  paid  ;  ^  or  if  the  indorser  him- 
self informs  the  holder  that  the  maker  has  absconded,  and  nego- 
tiates for  further  time  of  payment ; ''  the  want  of  notice  is  excused. 
If  the  agent  of  a  corporation  draws  a  bill  in  its  name  on  its  treas 
urer,  payable  to  its  own  order,  and  indorses  it  in  the  name  of  the 
corporation,  a  presentment  to  the  treasurer,  and  his  refusal  to 
honor  the  bill,  is  of  itself  notice  tc  Ihe  corporation  of  both  those 
facts.^  So,  if  the  presentment  in  season  was  impossible,  by  reason 
of  unavoidable  accident,  a  subsequent  presentment,  when  it  be- 
comes possible,  will  excuse  the  delay .^  But  the  actual  insolvency 
of  the  maker  of  a  note  at  the  time  when  it  fell  due,  does  not 
excuse  the  want  of  notice  to  the  indorser ;  ^"^  even  though  the  fact 
was  known  to  the  indorser,  who  indorsed  it  to  give  it  currency.^^ 

1  Sharp  V.  Bailey,  9  B.  &  C.  44,  4  M.  Stark.  R.  116;  Chapman  v.  Annett,  1  C. 
&  Ry.  4  ;  Callott  v.  Haigh,  3  Campb.  281.  &  K.  552.  Or,  if  before  maturity  of  tho 
If  the  transaction  between  the  drawer  and  note  or  bill,  the  indorser  promises  to  pay 
drawee  is  illegal,  the  payee,  being  the  in-  upon  the  agreement  of  the  holder  to  en- 
dorser, and  conusant  of  the  illegality,  is  large  the  time.  Norton  v.  Lewis,  2  Conn 
liable  without  notice.     Copp  v.  McDou-  478. 

gall,  9  Mass.  1.  7  Leffingwell  v.  White,  1  Johns.  Cas.  9a! 

2  Furness  v.  Cope,  —  5  Bing.  114.  *  Commercial  Baniv  v.  St.  Croix  Man. 
8  Story  on  Bills,  §§  .314-316.                        Co.,  10  Shepl.  280. 

*  Browning  v.  Kinnear,  Gow.  R.  81;  ^  Scholfield  v.  Bayard,  3  Wend.  488; 
Batcman  v.  Joseph,  12  East,  433  ;  Harri-  Patience  v.  Townley,  2  Smith,  11.  223. 
son  r.  Fitzhenry,  3  Esp,  240;  Siggers  v.  i"  Groton  v.  Dalheim,  6  Greenl.  476; 
"Brown,  I  M.  &  Rob.  520 ;  Ilopley  v.  Du-  Jackson  v.  Richards,  2  Caines,  343  ;  Ci-os- 
tresne,  15  East,  275;  Holford  v.  Wilson,  1  sen  v.  Ilutchins,  9  Mass.  205  ;  Sandfbrd  v. 
Taunt.  15;  Whittierr.  Graff  ham,  3  Greenl.  Dallawav,  10  Mass.  52. 

«I2.  11  Nicholson  v.  Gouthit,  2  II.  Bl.  609 ; 

*  Hewitt  V.  Thomson,  1  M.  &  Rob.  541.     Buck   v.  Cotton,  2  Conn.  126;  Gowcr  v 
.'""hipson  t'.  Knellcr,  4  Campb.  285  ;  I     Moore,  12  Shcpl.  16. 


PART  IV.]       BILLS   OF  EXCHANGE   AND   PROMSSORY  NOTES.  ITS 

Nor  does  the  insolvency  of  tlio  acceptor  excuse  the  want  of  notice 
to  the  drawer.^ 

§  195  a.  But  in  the  case  of  a  hanher^a  cheeky  the  drawer  is 
treated  as  in  some  sort  the  principal  debtor ;  and  he  is  not  dis 
charged  by  any  laches  of  the  holder,  in  not  making  due  present- 
ment, or  in  not  giving  him  due  notice  of  the  dishonor,  unless  he 
has  suffered  some  injury  or  loss  thereby ;  and  then  only  'pro  tanto. 
And  the  burden  of  proof  is  on  the  holder,  to  show,  as  part  of 
his  case,  that  no  damage  has  accrued  or  can  accrue  to  the 
drawer  by  his  omission  of  any  earlier  demand  or  notice ;  or,  in 
in  other  words,  that  his  situation,  as  regards  the  drawer,  remains 
as  it  was  at  the  time  of  the  dishonor .^ 

§  196.  So,  as  we  have  already  seen,  if  the  drawer  of  a  bill,  after 
full  notice  of  the  laches  of  the  holder,  pays  part  of  the  bill,  or 
promises  to  pay  it,  this  excuses  the  want  of  evidence  of  due  pre- 
sentment, protest,  and  notice.^  The  like  evidence  suffices  in  an 
action  against  the  indorser  of  a  bill  or  note.'*  But  it  has  been 
considered,  that,  though  the  waiver  by  the  dratver,  of  his  right  to 
presentment  and  notice,  may  be  inferred  from  circumstances  and 
by  implication,  yet  that  an  indorser  is  not  chargeable  after  laches 
by  the  holder,  unless  upon  his  express  promise  to  pay.^ 

§  197.  It  may  be  proper  here  to  add,  that,  where  matter  in  ex- 
cuse of  the  want  of  demand  and  notice  is  relied  upon,  it  is  usual 
to  declare  as  if  there  had  been  due  presentment  and  notice,  some 

1  Whitfield  V.   Savage,  2  B.  &  P.  277  ;  the  holder  is  not  required,  a3  an  essential 

May  V.  Coffin,  4  Mass.  341.     [Notice  of  preliminary  to  a  claim  upon  the  indorser, 

the  non-acceptance  and  non-payment  of  a  to  resort  to  or  inquire  for  the  new  residence 

"bill  of  exchange  drawn  by  a  partner  upon  to  which  the  maker  has  gone  beyond  the 

his  partnership  need  not  be  given  to  the  state   into  a  foreign   country."     Grafton 

drawer,  after  all  the  partners  have  gone  Bank  v.  Cox,  13  Gray,  504.] 
into  insolvency.    Fuller  v.  Hooper,  3  Gray,         ^  Story  on  Promissory  Notes,  §§  492, 

334.]     [* If  the  maker  of  a  note  absconds,  498;  3  Kent,  Comm.  104,  note  (a),  (5th 

leaving  no  visible  attachable  property,  a  edit.);  Little  v.  Phenix  Bank,  2  Hill  (N. 

want  of  a  demand  or  inquiry  for  him   is  Y. )  R.  425 ;  Kemble  v.  Mills,  1  M.  i  Gr. 

not  thereby  excused,  so  as  to  charge  the  757. 

indorser,  although  the  latter  knew  of  such         ^  Supra,   §  190;    Chitty  &   Hulme  on 

absconding.    Pierce  v.  Cate,  12  Cush.  190;  Bills,  p.  660  (9th  edit.)  ;  Duiyce  v.  Deu- 

Wheeler  v.   Field,  6  Met.  290.     In  such  nison,  5  Johns.   248 ;  Miller  ;;.  Hackley, 

case  "there   must  be  a  presentment  and  Id.  375;  Grain  v.  Colwell,  8  Johns.  384. 

demand  of  payment  at  his  last  place  of  [*  Myers  v.  Standart,  11  Ohio  St.  29.] 
business  or  of  residence,  or  of  due  and  rea-         *  Ibid. ;  Taylor  v.  Jones,  2  Campb.  105. 

sonable  efforts  to  find  them  for  that  pur-  See  also  Trimble  w.  Thorn,  16  Johns.  152; 

pose  in  order  to  fix  the  indorser  and  render  Jones  v.   Savage,  6  Wend.  658 ;  Leonard 

his  liability  absolute.    Such  demand  will  be  v.  Gray,  10  Wend.  504. 
sufficient  if  made  at  either  of  those  places,         ^  Borradaile    v.   Lowe,   4    Taunt.    93. 

if  they  were  both  left  and  abandoned  at  the  And  see  Wilkinson  v.  Jadis,  1  M.  &  Rob. 

same  time,  but  if  there  be  a  difference  in  41  ;  2  B.  &  Ad.  188  ;  Lord  v.  Chadboume, 

the  time,  it  should  be  made  at  that  which  8  Greenl.  198 ;  Fuller  v.  McDonald,  Id 

was  most  recently  occupied.     In  such  case,  213. 


174  LA\;   OF   EVIx^LNCk  I  PART  IV. 

latitude  in  the  mode  of  proof  being  allowed,  and  the  evidence 
being  regarded  not  strictly  as  matter  in  excuse,  but  as  proof  of 
a  qualified  presentment  and  demand,  or  of  acts  which,  in  their 
legal  effect,  and  by  the  custom  of  merchants,  are  equivalent 
thereto.  Moreover,  in  all  cases,  where  a  note  is  given  in  evidence 
upon  the  money  counts,  any  proof  which  establishes  the  plaintiff's 
right  to  recover  upon  the  note,  supports  the  count.^ 

§  198.  The  DEFENCE  to  an  action  on  a  bill  of  exchange  or  a 
promissory  note  most  frequeu'^ly  is  founded  on  some  defect  of 
proof  on  the  part  of  the  plaintiff,  in  making  out  his  own  title  to 
recover;  which  has  already  been  considered.  Several  other  is- 
sues, such  as  htjancy^  Tender^  the  Statute  of  Limitations,  &c., 
which  are  common  to  all  actions  of  Assumpsit,  will  be  treated 
under  those  particular  titles.  It  will  therefore  remain  to  consider 
some  defences,  which  are  peculiar  to  actions  on  bills  and  notes. 

§  199.  In  regard  to  the  consideration,  it  is  well  settled  in  the 
law-merchant,  that,  in  negotiable  securities,  in  the  hands  of  in- 
nocent third  persons,  a  valid  and  sufficient  consideration  for  the 
drawing  or  acceptance  is  conclusively  presumed.  But  as  between 
the  original  parties,  and  those  identified  in  equity  with  them,  this 
presumption  is  not  conclusive  but  disputable,  and  the  considera- 
tion is  open  to  inquiry.  Wherever,  therefore,  the  plaintiff,  being 
an  indorsee,  is  shown  to  stand  in  the  place  of  the  original  prom- 
isee or  party,  as,  by  receiving  the  security  after  it  was  dishonored, 
or  the  like,  the  defendant,  as  we  have  already  seen,^  may  set  up 

-  i^orth  Bank  v.  Abbott,  13  Pick.    465,  4  Johns.  224;  Losee  v.  Dunkin,  7  Johns. 

J69,  470;    Hill  v.  Heap,  1   D.  &  R.  57.  70;  Thurston    v.    McKown,  6    Mass.  76. 

And  see  Cory  v.  Scott,  3  B.  &  Aid.  619,  In  the  last  case,  the  note  had  been  running 

625,  per  Holroyd,  J.,  ace.     But  Bailey,  J.,  seven  days  from  the  date,  and  was  held  not 

was  inclined  to  think,  that  the  excuse  for  dishonored.    But  the  lapse  of  eight  months, 

want  of  notice  should  be  specially  alleged,  and  upwards,  has  been  held  sufficient  evi- 

Id.  p.  624.     See  also  in  accordance  with  dence  of  dishonor.     Ayer  v.  Hutchins,  4 

the  text,  Norton  v.  Lewis,  2  Conn.  R.  478  ;  Mass.  370.     See  also  Freeman  v.  Haskins, 

Williams  v.  Matthews,  3  Cowen,  252.  2  Caines,  368  ;  Sylvester  w.  Crapo,  15  Pick. 

2  Supra,  §  171.     At  what  time  a  note,  92;  Sice  v.  Cunningham,  1   Cowen,  397, 

payable  on  demand,  is  to  be  considered  by  408-410.     In  this  case,  the  lapse  of  five 

the    purchaser   as  a  dishonored   security,  months  was  held  to  discharge  the  indorscr. 

merely  from  its  age,  is  not  perfectly  clear.  See  3  Kent,  Comm.  pp.  91,  92  ;  Niver  v. 

and  perhaps  the  case  docs  not  admit  of  Best,  4  Law  Rep.  183,  N.  S.     By  a  statute 

determination    by  any   fixed   period,   but  of  Massachusetts,  respecting  notes  payable 

must   be  left   to  be  determined  upon   its  on  demand,  a  demand  made  at  the  end  of 

own  circumstances.     In  Barough  v.  White,  sixty  days  from  the  date,  without  grace  or 

4  B.  &  C.  325,  the  time  of  the  transfer  of  at  any  earlier  period,  is  to  be  deemed  made 

the  note  does  not  appear;  but  it  was  pay-  in  reasonable  time  ;  but  after  sixty  days  it 

able  ivith  interest,  which  Bailey,  J.,  men-  is  deemed  over  due.     [*  Gcnl.  Sts.  eh.  53, 

tioned  as  indicating  the  understanding  of  §  8.     In  Merritt  v.  Todd,  23  N.  Y.  28,  it 

the  parties,  that  it  would  remain  for  some  is  held  that  a  promissory  note,  payable  on 

time  unpaid.     See  also  Sanford  v.  Micklcs,  demand,  with  interest,  is  a  continuing  se- 


PART  IV.J       BILLS   -OF  EXCHANGE   AND   PROMISSORY  NOTES.  175 

the  defence  of  illegality  or  insufficiency  in  the  consideration ;  in 
which  case  he  mnst  be  prepared  with  evidence  to  prove  the  cir- 
cumstances under  which  the  bill  or  note  was  drawn,  and  that  it 
was  transferred  after  its  dishonor.^  Thus,  in  an  action  against 
the  acceptor  of  a  bill,  given  for  the  price  of  a  horse,  warranted 
sound,  it  appearing  that  the  holder  of  the  bill  and  the  original 
payee  were  identical  in  interest,  the  breach  of  the  warranty,  with 
an  offer  to  return  the  horse,  were  held  to  constitute  a  good  do 
fence .^  If  the  consideration  has  only  partially  failed,  and  th«» 
deficiency  is  susceptible  of  definite  computation,  this  may  be 
shown  in  defence  pro  tanto.  But  if  the  precise  amount  to  be 
deducted  \?,' unliquidated,  this  cannot  be  shown  in  reduction  of 
damages,  but  the  defendant  must  resort  to  his  cross-action,^ 
Mere  inadequacy  of  consideration  cannot  be  shown  simply  to 
reduce  the  damages,  though  it  may  be  proved  as  evidence  of 
fraud,  in  order  to  defeat  the  entire  action.* 

§  200.  How  far  other  equities  between  the  original  parties  may 
be  set  up  in  defence,  against  an  indorsee  affected  with  actual 
or  constructive  notice,  is  a  question  on  which  the  decisions  are 
not  perfectly  uniform.  It  has  already  been  intimated,^  that  in 
the  law-merchant,  the  equities  thus  permitted  to  be  set  up,  are 
those  only  that  attach  to  the  particular  bill,  and  not  those  arising 
from  other  transactions.     But  in   the   courts  of  several  of  the 

curity ;  an  indorser  remains  liable  until  an  the  law  deems  valid  and  sufficient  to  sup- 
actual  demand ;  and  the  holder  is  not  port  a  contract,  and  the  other  not,  there 
chargeable  with  neglect  for  omitting  to  the  contract  will  be  apportioned  as  between 
make  such  demand  within  any  particular  the  original  parties  or  those  that  have  the 
time.  The  question  is  here  fully  discussed  same  relative  rights,  and  the  holder  will 
by  Comstock,  C.  J.  See  also  Lockwood  v.  recover  to  the  extent  of  the  valid  consid- 
Crawford,  18  Conn.  361.  eration  and  no  further;  and  when  the 
^  Chitty  &  Hulme  on  Bills,  pp.  648,  662  parts  of  the  note  are  not  respectively  liq- 
(9th  edit.) ;  Webster  v.  Lee,  5  Alass.  334;  uidated  and  definite,  a  jury  will  settio  on 
Ranger  v.  Carey,  1  Met.  369  ;  Wilbour  v.  the  evidence  before  them,  what  amouKC  is 
Turner,  5  Pick.  526.  Thus,  he  may  show  founded  on  one  consideration  and  what  on 
that  the  note  or  bill  was  void,  by  the  stat-  the  other.  Parish  v.  Stone,  14  Pick.  198; 
ute  of  the  State,  being  made  and  delivered  see  also  Chicopee  Bank  v.  Chapin,  8  Met. 
on  Sunday.  Lovejoy  v.  Whipple,  3  40 ;  Stoddard  v.  Kimball,  6  Cush.  469 ; 
Washb.379.  And  see  Story  on  Contracts,  Bond  ».  Fitzpatrick,  4  Gray,  89  ;  Lothrop 
§§  616-620  (2d  edit.).  [A  negotiable  t;.  Snell,  11  Cush.  453.] 
promissory  note,  part  of  the  consideration  *  Solomon  v.  Turner,  1  Stark.  R.  51. 
of  which  is  liquors  unlawfully  sold,  is  wholly  ^  Supra,  %  \1\  ;  Burrough  v.  Moss,  10 
void  in  the  hands  of  the  promisee.  Per-  B.  &  C.  558;  Story  on  Bills,  §  187,  and 
kins  V.  Curamings,  2  Gray,  258.]  note  (3) ;  Story  on  Promissory  Notes,  §  178. 
2  Lewis  V.  Cosgrave,  2  Taunt.  2.  Though  the  note  is  made  payable  to  the 
^  See  s«/?ra,  tit.  Assumpsit;  Chitty  &  maker's  own  order,  he  will  be  entitled  to 
Hulme  on  Bills,  pp.  76-79,  662  (9th  edit.),  the  same  defence  against  an  indorsee  who 
[Where  a  promissory  note  is  given  upon  received  it  when  over-due,  as  if  it  were 
two  distinct  and  independent  considera-  made  payable  to  and  indorsed  by  a  third 
tions,  each  going  to  a  distinct  portion  of  person.  Potter  v.  Tyler,  2  Met.  58. 
the  note,  and  one  is  a  consideration  which 


176  LAW   OF   EVIDENCE.  [PART  IV 

United  States,  the  defendant  has  been  permitted,  in  many  cases, 
to  claim  any  set-off,  which  he  might  have  claimed  against  the 
original  party,  though  founded  on  other  transactions.^  In  all 
cases,  where  the  plaintiff  is  identified  with  the  original  contracting 
party,  the  declarations  of  the  latter,  made  while  the  interest  was 
in  him,  are  admissible  in  evidence  for  the  defendant.^  But, 
where  the  plaintiff  does  not  stand  on  the  title  of  the  prior  party, 
but  on  that  acquired  by  the  bona  fide  taking  of  the  bill,  it  is 
otherwise.^ 

§  201.  The  acceptor  of  a  bill  may  also  show  as  a  defence,  that 
his  acceptance  has  been  discharged  by  the  holder  ;  as,  if  the  holder 
informs  him  that  he  has  settled  the  bill  with  the  drawer,  and  that 
he  needs  give  himself  no  further  trouble ;  or,  where  the  holder, 
knowing  him  to  be  an  accommodation  acceptor,  and  having  goods 
of  the  drawer,  from  the  proceeds  of  which  he  expects  payment, 
informs  him  that  he  shall  look  to  the  drawer  alone,  and  shall 
not  come  upon  the  acceptor;  or,  if  he  should  falsely  state  to 
the  acceptor,  that  the  bill  was  paid,  or  otherwise  discharged, 
whereby  the  acceptor  should  be  induced  to  give  up  any  collateral 
security ;  or,  if  he  should  expressly  agree  to  consider  the  accept- 
ance at  an  end,  and  make  no  demand  on  the  acceptor  for  several 
years.^  And  whatever  discharges  the  acceptor  will  discharge 
the  indorser ;  as,  indeed  whatever  act  of  the  holder  discharges 
the  principal  debtor  will  also  discharge  all  others  contingently 

^  Sargent  v.  Southgate,   5   Pick.   312;  note,  but  after  it  was  due,  are  admissible 

Ayer  v.  Hutchins,  4  Mass.  370 ;  Holland  in  evidence  to  show  payment  to  such  for- 

i;.    Makepeace,   8  Mass.   418;    Shirley  v.  mer  holder,  or  any  right  of  set-off  which 

Todd,   9  Greenl.  83.     See  also  the  cases  the  maker  had  against  him.     Such  dccla- 

cited  in  Bayley  on  Bills,  pp.  544  -  548,  Phil-  rations,  made  by   such   holder  before   he 

lips   &    Scwall's  notes     (2d   Am.   edit.);  took  the  note,  are  inadmissible;  and  such 

Tucker  y.  Smith,  4  Greenl.  415 ;  Sylvester  declarations   by  such  holder,    made   after 

V.  Crapo,  15  Pick.  92.     By  a  statute   of  assigning  the  note  to  one  from  wliom  the 

J/ussac/iii.ff^/s,  the  maker  of  a  note  payable  plaintiff  since  took  it,  are  not   competent 

on   demand,  is   admitted   to  any  defence  testimony,  unless  such  assignment  was  con- 

against  the  indorsee,  which  would  be  open  ditioned  to  be  void  upon   the  jjayment  to 

to   him   in   a  suit  brought  by  the  payee,  the  assignor  of  a  less  sura  than  the  amount 

Stat.  1839,  ch.  121.  due  on  the  note,  in  which  case  such  decla- 

2  Ante,  Vol.  1,  §  190;  Beauchamp  v.  rations  are  competent  evidence  for  the 
Parry,  1  B.  &  Ad.  89  ;  Wclstead  v.  Levy,  defendant  to  defeat  the  recovery  against 
1  M.  &  Rob.  138;  Chitty  &  Hulrae  on  himof  any  interest  remaining  in  ttie  assign- 
Bills,  pp.  664,  665  (9th  edit.) ;  Shirley  v.  ors,  after  such  conditional  assignment. 
Todd,  9  Greenl.  83 ;  Hatch  v.  Dennis,  Bond  v.  Fitzpatrick,  4  Gray,  89  ;  Fisher 
1  Fairf  244  ;  Pocock  v.  Billings,  2  Bing.  v.  Leland,  4  Gush.  456 ;  Stoddard  v.  Kim- 
269  ;  Ilacket  v.  Martin,  8  Greenl.  77.     [In  ball,  lb.  604.] 

a  suit  against  the  maker  of  a  promissory  ^  Smith  v.  De  Wruitz,  Ry.  &  M.  212; 

note  by  one  to  whom  it  was   transferred  Shaw  v.  Broom,  4  Dowl.  &  Ry.  730. 

long  after  it  was  overdue,  the  declarations  *  Story    on    Bills,    §§   252,    265  -  268, 

of  a  former  holder,  made  while  he  held  the  430  -  433. 


PART  IV.]       BILLS   OF  EXCHANGE  AND   PROIHSSORY  NOTES.  177 

liable,  upon  bis  default ;  ^  and,  more  generally  speaking,  the 
release  of  any  party,  whether  drawer  or  indorser,  will  discharge 
from  payment  of  the  bill  every  other  party  to  whom  the  party 
released  would  have  been  liable  ;  if  such  party  released  should 
have  paid  the  bill.^ 

§  202.  If  the  defendant  is  not  the  principal  and  absolute  debtoi, 
but  is  a  party  collaterally  and  contingently  liable,  upon  the  prin- 
cipal debtor's  default,  as  is  the  drawer  or  indorser,  he  may  set 
up  in  defence  any  valid  agreement  between  the  holder  of  the 
security  and  the  principal  debtor,  founded  upon  an  adequate  con- 
sideration, and  made  without  his  own  concurrence,  whereby  a  neic 
and  further  time  of  payment  is  given  to  the  principal  debtor ;  and 
this,  though  the  liability  of  the  drawer  or  indorser  had  previously 
become  fixed  and  absolute,  by  due  presentment,  protest,  and  no- 
tice.^ But  mere  neglect  to  sue  the  principal  debtor,  or  a  receipt 
of  part  payment  from  him,  will  not  have  this  effect.*  This  de- 
fence, however,  may  be  rebutted  on  the  part  of  the  plaintiff, 
by  proof  that  the  agreement  was  made  with  the  assent  of  the 
defendant ;  or,  that  after  full  notice  of  it,  he  promised  to  pay ;  ^ 
or,  that  the  agreement  was  without  consideration,  and  therefore 
not  binding.^ 

§  203.  The  competency  of  the  parties  to  a  bill  or  note,  as  wit- 
nesses, in  an  action  upon  it  between  other  parties,  has  been  briefly 
considered  in  the  preceding  volume ;  ^  where  it  has  been  shown 
that  they  are  generally  held  admissible  or  not,  like  any  other- 
witnesses,  according  as  they  are  or  are  not  interested  in  the 
event  of  the  suit.  Thus,  in  an  action  against  the  acceptor  of 
a  bill,  the  drawer  is  a  competent  witness  for  either  party;  for 
if  the  plaintiff  recovers,  he  pays  the  bill  by  the  hands  of  the 
acceptor,  and  if  not,  then  he  is  liable  directly  for  the  amount.^ 

1  Story  on  Bills,  §§  269,  270,  437.  721 ;    Bank  of  United  States  v.  Hatch,  6 

-  Storj'  on  Bills,  §  270;  Sargent  v.  Ap-  Peters.  R.  250;  Mottram  v.  Mills,  2  Sandf 

pleton,  6  Mass.  85.  [An  agreement  by  S.  C.  R.  189;  Grecly  v.  Dow,  2  Met.  176. 
the  holder  of  a  promissory  note  payable         *  Ibid. ;  Kennedy  v.  Motte,  3  McCord, 

on   demand,  made  ten  months   alter  the  13  ;  Wah\n('n  v.  S.  Quintin,  1  13.  &  P.  652  ; 

date  of  the  note,  never  to  sue  the  maker  of  Prazier  v.  Dick,  4  Rob.  (Louis.)  R.  249. 
the  note,  and  not  to  call  on  the  indorsee         ^  Chitty  &  Hulme  on  Bills,  pp.  415,  416 

for  a  period  of  nine  months,  suspends,  but  (9th  ed.) ;  Story  on  Bills,  §  426. 
does  not  destroy,  the  claim  against  such         •>  McLemore  y.  Powell,  12  Wheat.  551. 
indorsee.     Hutchins  v.  Nichols,  10  Cush.         7  j^^^e,  Vol.  1,  §399.     "Whether  a  party 

299  ;  see  also  Sohier  v.  Loring,  6  lb.  537  ;  to  a  negotiable  instrument,  which  he  has 

Greely  v.  Dow,  2  Met.  176.]  put  in  circulation,  is  a  competent  witness 

^  Story  on  Bills,  §§  425, 426,  427  ;  Chit-  to  prove  it  void  in  its  creation,  qucere;  and 

ty  &  Hulme  on  Bills,  pp.  408-415  (9th  see  ante,  Vol.  1,  §§  383,  384,  385. 
edit.);   Philpot  v.  Bryant,  4  Bing.   717,         *  Dickinson  v.  Prentice,    4  Esp.   32; 

VOL.  n  12 


178  LAW   OF   EVIi.i.'NCE.  [PAAl  IV. 

iSo,  if  a  bill  has  >een  drawn  by  one  partner  in  the  name  of  tlie 
firm,  to  pay  his  o\a\  private  debt,  another  member  of  the  firm 
is  a  competent  witnes.^  ^r  the  acceptor  to  prove  that  the  bill  was 
drawn  without  authority.^  But  if  the  acceptance  was  given  for 
the  accommodation  of  the  drawer,  he  is  not  a  competent  witness 
for  the  acceptor,  to  prove  usury  in  t^Q  discounting  of  the  bill, 
without  a  release.2  Nor  is  he  comp-  ^nt,  where  the  amount 
of  his  liability  over,  in  either  event  of  the  nudt,  is  not  equal.^ 

§  204.  So,  also,  in  an  action  agaaist  one  of  several  makers  of  a 
note^  another  maker  of  the  same  note  is  a  competent  witness  for 
the  plaintiff,  as  he  stands  indifferent ;  *  iMt  not  for  the  defendant, 
to  prove  illegality  of  conside.^tion.^  The  maker  is  also  a  compe- 
tent witness  for  the  plaintiff,  .'"v  an  action  by  the  indorsee  against 
the  indorser.^  But  it  seems,  i,«at  he  is  not  competent  for  the 
defendant  in  such  action,  if  the  note  was  made  and  indorsed  for 
his  own  accommodation ;  for  a  verdict  for  the  plaintiff,  in  such 
case,  would  be  evidence  against  him.'^ 

§  205.  The  acceptor,  or  drawee  of  a  bill,  is  also  a  competent 
witness,  in  an  action  between  the  holder  and  the  drawer,  to  prove 
that  he  had  no  funds  of  the  drawer  in  his  hands  ;  for  this  evidence 
does  not  affect  his  liability  to  the  drawer.^  And  even  the  declara- 
tion of  the  drawee  to  the  same  effect,  if  made  at  the  time  of 
presentment  and  refusal  to  accept  the  bill,  is  admissible,  as  prima 
facie  evidence  of  that  fact,  against  the  drawer.^  But  it  has  been 
held,  that  a  joint  acceptor  is  not  competent  to  prove  a  set-off,  in 
an  action  by  the  holder  against  the  drawer,  because  he  is  answer- 
able to  the  latter  for  the  amount  which  the  plaintiff  may  recover.^® 

Eich  V.  Topping,  Peake's  Cas.  224  ;  Low-  122 ;  Levi  v.  Essex,  2  Esp.  Dig.  707 ;  ante, 

ber  r.  Shaw,  5  Mason,  241  ;  Humphreys.  Vol.    1,  §§  329,  400;  Skclding  v.    War- 

Moxon,  1  Peake's  Cas.  72;  Chitty&  Hulme  ren,  15  Johns.  270;  Taylor   v.  McCune, 

on  Bills,  p.  673  (9th  ed.);  Storer  v.  Lo-  1  Jones,  460. 

gan,  9  Mass.  55;  Crowley  t).  Barry,  4  Gill,  "^  Pierce  v.  Butler,  14  Mass.  303  ;  Van 

194.  Schaack  v.  Stafford,  12  Pick.  565  ;  Hnbbly 

1  Ridley  v.  Taylor,  13  East,  176.  v.  Brown,  16  Johns.  70. 

2  Hardwick  r.  Blanchard,  Gow.  R.  113;  ^  Staples  i'.  Okines,  1  Esp.  332;  Leggs 
Burgess  v.  Cuthil,  6  C.  &  P.  282.      And  v.  Thorpe,  2  Campb.  310. 

see  Bowne  v.  Hyde,  6  Barb.  S.  C.  R.  392.  »  Prideaux  v.  Collier,  2  Stark.  R.  57 ; 

8  Scott   V.   McLellan,    2    Greenl.    199;  anfe.  Vol.  1,  §§  108,  109,  111,  113. 
jones  V.  Brooke,  4  Taunt.  463 ;  ante,  Vol,         '^^  Mainwaring  v.  Mytton,  1   Stark.  B. 

1,  §  401 ;  Eaith  v.  Mclntyre,  7   C.  &  P.  83 ;  ante.  Vol.  1,  §  401.     Sed  qiuEre,  for  it 

44.  seems  that  the  acceptor  would  be  liable  to 

*  York  V.  Blott,  5  M.  &  S.  71.  the  drawer  for  the  whole  amount  of  the 

^  Slegg  V.  Phillips,  4  Ad.  &  El.  852.  bill  which  he  had  not  paid  to  the  holder. 

»  Venning  v.  Shuttleworth,  Bayley  on  Reid  v.  Furnival,    5  C.  &  P.  499 ;  1  C.  & 

Bills,  422,  [536,]  [593] ;  Fox  v.  Whitney,  M.  538,  S.  C. ;   Johnson  v.   Kennison,  2 

6  Mass.  118;  Baker  v.  Briggs,  8  Pick.  Wills,  262. 


'>ART  IV.J       BILLS   OF  EXCHANGE   AND  PROMISSORY  NOTES.  179 

Nor  is  he  a  competent  witness  for  the  drawer  to  prove  that  he 
received  it  from  the  drawer  to  get  it  discounted,  and  delivered 
it  to  the  plaintiff  for  that  purpose,  but  that  the  plaintiff  had  not 
ftirnished  the  money ;  for  being  absolutely  bound,  by  his  accept- 
ance, to  pay  the  bill,  he  is  bound  to  indemnify  the  drawer  against 
the  costs  of  the  suit.^ 

§  206.  In  an  action  by  the  indorsee  against  the  drawer  of  a 
bill,  the  payee  is  a  competent  witness  to  prove  the  consideration 
for  the  indorsement.^  The  payee  of  a  note,  who  has  indorsed  it 
without  recourse,  is  also  a  competent  witness  to  prove  its  execu- 
tion by  the  maker.^  But  where  the  note  was  payable  to  the  payee 
or  hearer  J  the  payee  has  been  held  inadmissible  to  prove  the  signa- 
ture of  the  maker,  on  the  ground  that  he  was  responsible,  upon 
an  implied  guaranty,  that  the  signature  was  not  forged.* 

§  207.  In  an  action  by  the  indorsee  against  the  drawer  or  accept- 
or, an  indorser  is,  in  general,  a  competent  witness  for  either  party, 
as  he  stands  indifferent  between  tliem.^  But  an  intermediate  indor- 
ser of  a  bill  is  not  a  competent  witness,  in  a  suit  on  the  bill  by  a 
subsequent  indorsee  against  a  prior  indorser,  to  prove  notice  of  its 
non-acceptance.^  Thus,  under  the  general  rule  that  the  indorser, 
standing  indifferent,  is  a  competent  witness,  he  has  been  admitted 
to  prove  payment ;  "^  time  of  negotiation  by  indorsement ;  ^  altera- 
tion of  date  by  fraud ;  ^  want  of  interest  in  the  indorsee ;  ^®  usury ; " 
and  the  fact  of  his  own  indorsement.^^  go^  to  prove  that  the  claim, 
which  the  defendant  insisted  on  by  way  of  set-off,  was  acquired  by 
him  after  he  had  notice  of  the  transfer  of  the  note  to  the  plaintiff.^ 

1  Edmonds  v.  Lowe,  8  B.  &  C.  407 ;  2  indorser  has  been  held  a  competent  wit- 
M.  &  R.  427,  S.  C.  ness,  for  the  defendant,  in  an  action  against 

2  Shuttleworth  v.  Stephens,  1   Campb.  a  subsequent  indorser.      Hall  v.  Hale,  8 
407,  408.  Conn.  336. 

8  Rice  y  Stearns,  3  Mass.  225.     Or,  that         "^  Warren  v.  Merry,  3  Mass.  27  ;  White 

the  note   had  been  fraudulently  altered;  v.  Kibling,  11  Johns.  128;  Bryant  v.  Rit- 

Parker  v.  Hanson,  7  Mass.  470;.  or  fraud-  torbush,  2  N.  H.  212.     So  in  Louisiana,  if 

ulently  circulated;  WoodhuU  v.  Holmes,  the  indorser  has  not  been  charged  with 

10  Johns.  231.  notice.      Bourg   i'.    Bringier,   20   Martin, 

*  Herrick  v.  Whitney,  15  Johns.   240;  R.  507. 
Shaver  v.  Ehle,  16  Johns.  201.  8  Baker  v.  Arnold,  1  Caines,  248  ;  Baird 

5  Richardson  v.  Allen,  2  Stark.  R.  334  ;  v.  Cochran,  4  S.  &  R.  397 ;  Smith  v.  Lov- 
Stevens  «.  Lynch,  2  Campb.  332  ;  12  East,  ett,  11  Pick.  417. 

38,  S.  C. ;  Birt  v.  Kershaw,  2  East,  458 ;         ^  Parker  v.  Hanson,  7  Mass.  470  ;  Sham- 
Charrington  v.  Milner,  1  Peake's  Cas.  6;  burg  v.  Commagere,  10  Martin,  R.  18. 
Reay  v.  Packwood,  7  Ad.  &  El.  917  ;  Chit-         ^>  Barker  v.  Prentiss,  6  Mass.  430  ;  May- 
ty  &  Hulme  on  Bills,  p.  674   (9th  ed.).  nard  v.  Nekervis,  9  Barr.  81. 
But  see  Barkins  v.  Wilson,  6  Co  wen,  471.         "  Tuthillt?.  Davis,  20  Johns.  287;  Tuck- 
See  further,  ante,  Vol.  1,  §  385,  n.,  and  err.  Wilamonicz,  3  Eng.  157. 
§§  399  -  401 .  12  Richardson  v.  Allan,  2  Stark.  R.  334 

6  Talbot  V.  Clark,  r  P'sk.  51  ;  Cropper        13  Zeigler  v.  Gray,  12  S.  &  R.  42. 
V.  Nelson,  3   Wash.    >r      But  a  prior 


180 


LAW  OF  EVIDENCE. 


[part  IV 


And  generally  the  payee,  after  having  indorsed  the  note,  is  compe- 
tent to  prove  any  matters  arising  after  the  making  of  the  note, 
which  may  affect  the  right  of  the  holder  to  recover  against  the 
the  maker.^ 


^  See  the  cases  already  cited  in  this  ac- 
tion. Also,  Powell  V.  Waters,  17  Johns, 
li*^;  McFadden  v.  Maxwell,  Id.  188.  In 
•ereral  of  the  United  States,  all  the  parties 
liable  on  a  bill  or  note  may  be  sued  in  one 
action;  in  which  case,  however,  the  par- 
ties are  respectively  entitled  to  the  testimo- 


ny of  any  other  parties  defendant  in  the 
suit,  in  the  same  manner  as  if  they  had 
been  sued  in  several  actions.  See  Tr  jscon- 
sin,  Rev.  Stat.  1849,  ch.  93,  §§  9,  19,  20* 
Michigan,  Rev.  Stat.  1846,  ch.  99,  §§  6,  12. 
17. 


PABT  IV.]  CABRIEBS.  1«1 


CARRIERS. 

|*§  208.  Duties  and  liabilities  of  carriers,  whether  by  land  or  water,  ship,  rail-car  or 
wagon,  are  the  same.    Remedies  against  carriers. 

209.  Contract  must  be    roved  as  laid  in  the  declaration. 

210.  If  defendant  is  proved  to  be  a  common  carrier,  extent  of  liability  is  presumed 

by  law. 

21 1.  Carrying  for  persons  generally  for  hire  as  a  public  employment  constitutes  one 

a  common  carrier. 

212.  Contract  must  be  made  icith  the  plaintiff  and  by  the  defendant. 

213.  Receipt  of  goods  by  carrier,  and  loss  or  non-delivery,  how  proved. 

214.  Where  defendants  are  jointly  interested  in  profit  of  transportation,  if  action  is 

assumpsit,  joint  contract  must  be  proved  by  evidence  of  joint  o^vne^ship 
or  otherwise.  If  the  contract  is  set  forth  in  action  of  tort,  it  must  be  proved 
as  laid. 

215.  Common  carrier  by  general  notice  may  qualify,  but  not  limit,  restrict,  or 

avoid  his  common-law  liability.     Some  cases  contra. 

216.  Burden  of  proof  is  on  carrier  to  show  that  the  person  with  whom  he  deals  is 

fully  informed  of  public  notice. 

217.  Where  there  are  several  notices,  carrier  will  be  bound  by  that  least  favorable 

to  himself 

218.  Effect  of  notice,  avoided  by  proof  of  waiver  by,  or  malfeasance,  misfeasance,  or 

negligence  q/"  carrier. 

219.  Ine\4table  accident  excuses  private  carrier;  but  only  act  of  God,  or  public 

enemies,  a  common  carrier.    Burden  of  proof  on  common  carrier. 

220.  Fraud  or  negligence  of  plaintiff,  or  internal  defect  in  goods,  a  defence  for  carrier 

and  question  for  jury. 

221.  Carriers  of  passengers  bound  to  use  utmost  care  and  diligence  of  very  cautious 

persons. 

222.  Plaintiff  must  show  defendant's  engagement  to  carry  him,  that  he  took  his 

place  in  the  vehicle,  and  negligence  on  the  part  of  the  defendant. 
222  a.  What  will  excuse  a  common  carrier  of  passengers  for  refusing  to  receive 
'  and  convey  a  party.] 

§  208.  There  is  no  distinction,  in  regard  to  their  duties  and 
liabilities,  between  carriers  of  goods  by  water  and  carriers  by 
land,  nor  between  carriers  by  ships,  steamboats,  and  barges,  and 
by  railroad  cars  and  wagons.  The  action  against  a  carrier  in  any 
of  these  modes  is  usually  in  assumpsit  upon  the  contract ;  and 
this  is  generally  preferable,  as  the  remedy  in  this  form  survives 
against  his  executor  or  administrator.  The  declaration  involves 
three  points  of  fact,  which  the  plainti£f  must  establish,  upon  tl 


182  LAW   OF   EVIDENCE.  [PART  IV. 

general  issue  ;  namely,  the  contract ;  the  delivery  of  the  goods,  or, 
in  the  case  of  a  passenger,  his  being  in  the  carriage ;  and  the 
defendant's  breach  of  promise  or  duty.  Carriers  are  also  liable 
in  trover,  for  the  goods,  and  in  case,  sounding  in  tort,  for  mal- 
feasance or  misfeasance ;  but  although  the  remedy  in  tort  is  on 
some  accounts  preferable  to  asswnpsit^  the  form  of  action  does  not 
very  materially  affect  the  evidence  necessary  to  maintain  it. 

§  209.  In  any  form  of  action,  the  contract  must  be  proved  as 
laid  in  the  declaration. ^  If  the  contract  is  stated  as  absolute, 
proof  of  a  contract  in  the  alternative  will  not  support  the  allega- 
tion, even  though  the  option  has  been  determined ;  ^  neither  will 
it  be  supported  by  proof  of  a  contract  containing  an  exception  from 
certain  classes  of  liability;  as,  for  example,  that  the  carrier  will 
not  be  responsible  for  losses  by  fire,  perils  of  the  seas,  or  the  like.* 
But  if  the  exception  does  not  extend  to  the  obligation  of  the  con- 
tract itself,  but  only  affects  the  damages  to  be  recovered,  the  dec- 
laration may  be  general,  without  any  mention  of  the  exception, 
the  proof  of  which  at  the  trial  will  be  no  variance.  Thus,  where 
the  action  was  in  the  common  form  of  assujnpsit,  and  the  evidence 
was,  that  the  carrier  had  given  notice  that  he  would  not  bo  ac- 
countable for  a  greater  sum  than  £5  for  goods  unless  they  were 
entered  as  such  and  paid  for  accordingly,  the  variance  was  lield 
immaterial.^  And  if,  in  a  like  form  of  action  by  the  consignor  of 
goods,  the  allegation  is,  that  the  consideration  or  hire  was  to  be 
paid  by  the  plaintiff,  and  the  evidence  is,  that  it  was  to  be  paid  by 
the  consignee,  it  is  no  variance ;  the  consignor  being  still  in  law 

1  See  1   Chitty  on  Plead.  161,  162  (7th  of  their  contents,  unless  he  receives  the 
edit.)  [125,  126];  Govett  v.  Radnidge,  3  property  as  and  for  a  compliance  with  the 
East,  70.     [Trover  will  not  lie  against  a  contract  of  the  carrier.     Alden  v.  Pearson, 
common    carrier    for    nonfeasance    only.  3  Gray,  342.      A   common   carrier,   who 
Bowlin  V.  Nye,  10  Gush.  416  ;  Collins  v.  innocently  receives  goods  from  a   wrong- 
Boston  &  M.  R.  E.,  lb.  610;  Scoville  v.  doer,  without  the  consent  of  tlfe  owner, 
Griffith,  2  Kernan  (N.  Y.)    509.      There  express  or  implied,  has  no  lien  upon  them 
must  be  a  previous  demand.     Robinson  v.  for  their  carriage,  as  against  sucli  owner 
Austin,  2  Gray,  564.     And  where  a  car-  Robinson  v.  Baker,  5  Gush.  137  ;  Fitch  u 
tier,  having  no  legal  claim  upon  the  goods  Newberry,  1  Doug.  (Mich.)  1.] 
except  for   the  freight,  refuses   to  deliver  ^  Ireland  r.  Johnson,  1  Bing.  N.  G.  162  ; 
them  unless  a  further  sum  should  be  first  Bretherton  v.  Wood,  3  B.  &  B.  54 ;  Max 
paid,  the  consignee  is  not  bound  to  tender  v.  Roberts,  12  East,  89. 
the  freight-money,  and  the  carrier's  refusal  ^  Penny  v    Porter,  2  East,  2 ;  Yate  v. 
to  deliver,  is  evidence  of  a  conversion  of  Willan,  Id.  128;  cmte.  Vol.  1,  §§  58,  66; 
them.      Adams   v.    Clark,   9    Gush.  217;  Hilt  u.  Campbell,  6  Greenl.  109. 
Rooke  V.  Midland  R.  Co.,  14  Eng.  Law  &  *  Latham  i'.  Rutley,  2  B.  &  G.  20.     And 
Eq.  175.     The  receipt  by  the  owner  of  the  see  Smith  v.  Moore,  6  Greenl.  274;  Fer 
whole  number  of  casks  of  goods  shipped,  guson  v.  Cappeau,  6  H.  &  J.  394. 
do«^s  not  prevent  him  from  maintaining  an  ^  Clark  v.  Gray,  6  East,  564 
action  against  the  carrier  for  a  loss  of  part 


PART  IV.]  CARRIERS.  183 

liable.^  A  variance  between  the  allegation  and  proof  of  the  termi- 
ni will  be  fatal.2  But  here,  the  place,  mentioned  as  the  terminus, 
is  to  be  taken  in  its  popular  extent,  and  not  strictly  according  to 
its  corporate  and  legal  limits ;  and  therefore  an  averment  of  a 
contract  to  carry  from  London  to  Bath,  is  supported  by  evidence 
of  a  contract  to  carry  from  Westminster  to  Bath.^  But  in  an  ac- 
tion on  the  case  for  non-delivery  of  goods,  the  terminus  a  quo  is 
not  material.* 

§  210.  If  the  defendant  is  alleged  and  proved  to  be  a  common 
carrier,  the  law  itself  supplies  the  proof  of  the  contract,  so  far  as 
regards  the  extent  or  degree  of  his  liability.  But  if  he  is  not  a 
common  carrier,  the  terms  of  his  undertaking  must  be  proved  by 
the  plaintiff.  And  in  either  case,  where  there  is  an  express  con- 
tract, that  alone  must  be  relied  on,  and  no  other  can  be  implied.^ 
If  it  appears  that  the  goods  delivered  by  the  owner  to  one  common 
carrier,  and  that  he,  without  the  owner's  knowledge  or  authority, 
delivered  them  over  to  another,  to  be  carried,  this  evidence  will 
support  an  action  brought  directly  against  the  latter,  with  whom 
the  contract  will  be  deemed  to  have  been  made  through  the  agency 
of  the  former,  ratified  by  bringing  the  action.^ 

1  Moore  v.  Wilson,  1  T.  R.  659  ;  Tur-  carrier  of  goods  and  chattels  for  hire,  from 

ney  v.   Wilson,    7   Yerg.   340 ;   Moore  v.  to ;  and  being  such  carrier,  the 

Sheridine,  2  H.  &  McH.  453.     If  the  decla-  plaintiff  then,  at  the  request  of  the  said 

ration  is  on  a  loss  by  negligent  carrying,  {defendant)  caused  to  be  delivered  to  him 

it  will  not  be  supported  by  proof  of  a  loss  certain  goods  of  the  plaintiff,  to  wit,  [here 

in  the   defendant's  wareliouse,  before   the  describe  them'],  of  the  value  of to  be 

goods  were  taken  to  the  coach  to  be  car-  taken  care  of  and  safely  and  securely  con- 

ried.     Roskell  v.  Waterhouse,  2  Stark.  R.  veyed  by  the  said  {defendant)  as  such  car- 

461;  Z«  re  Webb,  8  Taunt.  443  ;  2  Moore,  rier,  from  said to  said ,  there  to 

500,  S.  C.  be   safely  and  securely  delivered  by  said 

2  Tucker  v.  Cracklin,  2  Stark.  R.  385;  {defendant)  to  the  plaintiff,  {or,  to ,  if 

[Fowles  V.  Great  Western  R.  Co.,  16  Eng.  the  case  is  so,)  for  a  certain  reward   to  be 

Law  &  Eq.  531.]  paid  to  the  said  {defendant)  ;  in  considera- 

^  Beckford  v.    Crntwell,  1  M.  &   Rob.  tion  whereof  the  said   {defendant)  as  such 

187;  5  C.  &  P.  242,  S.  C. ;   Ditcham  y.  carrier,  then  received   said  goods  accord- 

Chivis,  4  Bing.  706  ;  1  M.  &  Payne,  735,  ingly,  and  became  bound  by  law  and  un- 

S.  C.     See  also  Burbige  v.  Jakes,  1  B.  &  dertook  and  promised  the  plaintiff  to  take 

P.  225.     [*  Receipt  of  a  carrier  for  goods  care  of  said  goods,  and  safely  and  securely 

directed   to  a  place  beyond  his  professed  to  cany  and  convey  the  same  from  said 

terminus  is  prima  facie  evidence  of  a  con-  to ,  and  there  to  deliver  the  same 

tract  to  deliver  at  such  place.     But  parol  safely  and  securely,  to  the  plaintiff  {or,  to 

evidence  is  admissible,  to  show  the  route,  ,)  as  aforesaid.     Yet  the  said  {defend- 

the  terminus,  and  any   usage   or  custom.  a>it)  did  not  take  care  of  said  goods,  nor 

Angle  V.  Miss.,  &c.  Railw.,  9  Iowa,  487.]  safely  and  securely  carry  and  convey  and 

*  Woodward  v.  Booth,  7  B.  &  C.  301.  deliver  the  same  as  aforesaid  ;  but,  on  the 

^  Robinson  v.  Dunmore,  2  B.  &  P.  416  ;  contrary,  the  said  {defendant)  so  negligent- 

2  Steph.  N.  P.  994,  995.  ly  conducted  and  so  misbehaved  in  regard 

'^  Sanderson  v.  Lamberton,  6  Binn.  129.  to  said  goods  in  his  said  calling  of  common 

The  declaration  against  a  common  carrier  carrier,  that   by   reason   thereof  the   said 

is   as   follows:  —  "For   that  whereas  the  goods  became  and  were  wholly  lost  to  the 

said   {defendant)    on was   a  common  plaintiff " 


184 


LAW   OF   EVIDENCE. 


[part  IV 


§  211     The  defendant  is  proved  to  be   a   common  carrier^  by 
evidence  that  he  undertakes  to  carry  for  persons  generally,  exer- 


Against  a  private  carrier,  charged  with 
the  loss  of  goods  by  negligence,  the  decla- 
ration in  assumpsit  is  as  follows  :  — 

"  For  that  on in  considei-ation  that 

the  plaintiff,  at  the  request  of  the  said  [de- 
fendant) had  delivered  to  him  certain  goods 
and  chattels,  to  wit  [lieve  describe  them],  of 

the  value  of ,  to  be  safely  conveyed  by 

him  from to ,  for  a  certain  reward 

to  be  paid  to  the  said  [defendant),  he  the 
said  [defendant)  promised  the  plaintiff  to 
take  good  care  of  said  goods,  while  he  had 
charge  of  the  same,  and  with  due  care  to 
convey  the  same,  from to afore- 
said, and  there  safely  to  deliver  the  same  to 

the  plaintiff,    [or,  to ,  as  the  case  may 

be.)  Yet  the  said  [defendant)  did  not  take 
due  care  of  said  goods  while  he  had  charge 
of  the  same  as  aforesaid,  nor  did  he  with 
due  care  convey  and  deliver  the  same  as 
aforesaid,  but  on  the  contrary  so  carelessly 
and  improperly  conducted  in  regard  to  said 
goods,  that  by  reason  thereof  they  became 
and  were  wholly  lost  to  the  plaintiff." 

[A  railroad  corporation,  receiving  goods 
for  transportation  to  a  place  situated  be- 
yond the  line  of  its  road,  on  another  rail- 
road which  connects  with  its  own,  (with 
which  it  has  no  connection  in  business,) 
but  taking  pay  for  the  transportation  over 
its  own  road  only,  is  not  liable,  in  the  ab- 
sence of  any  special  contract,  for  the  loss 
of  the  goods,  after  their  delivery  within  a 
reasonable  time  to  the  other  railroad.  Nut- 
ting V.  The  Connecticut  River  R.  R.  Co.,  1 
Gray,  .502.  The  fiicts  of  that  case  were  these : 
The  defendant,  a  railroad  corporation,  and 
a  common  carrier,  received  at  Northamp- 
ton, Mass.,  certain  goods  "  for  transporta- 
tion to  New  York,"  and  within  a  reason- 
able time  delivered  the  same  at  Springfield, 
the  southern  terminus  of  its  route,  to  the 
New  Haven,  &c.  railroad,  with  which  the 
defendant's  I'oad  there  connects,  and  took 
from  such  road  a  receipt  for  the  goods. 
The  New  Haven,  &c.  road  extends  to  New 
Haven  and  there  connects  wifli  the  New 
York,  &c.  railroad,  which  extends  to  the 
city  of  New  York.  A  loss  occurred  be- 
tween Springfield  and  New  Haven  for 
which  the  plaintiff  brought  his  action.  It 
was  the  custom  of  the  defendant  to  receive 
goods  at  the  various  stations  on  its  line  for 
transportation  to  New  York,  and  to  convey 
them  in  its  own  cars  to  Springfield,  and 
there  deliver  them  to  the  New  Haven,  &c. 
road,  by  whose  agents  the  goods  were  over- 
hauled and  checked.  The  goods  were 
sometimes  carried  over  the  New  Haven,  &c. 
road,  without  change  of  cars,  and  were 
sometimes  shifted  to  the  cars  of  the  New 


Haven,  &c.  road,  but  the  defendant  re- 
ceived pay  only  as  far  as  Springfield. 
When  goods  were  brought  from  New  York 
to  places  on  the  line  of  the  defendant's 
road,  they  were  brought  either  in  the  de- 
fendant's freight  cars,  or  in  those  of  the 
two  other  corporations  above  named,  or  in 
those  of  still  another  corporation  which 
connected  with  the  defendant's  road  at  its 
northern  terminus.  Upon  the  above  facts, 
the  court  held  that  the  plaintiff  could  not 
maintain  his  action.  Ibid.  See  also  Van 
Santvoord  v.  St.  John,  6  Hill,  157,  revers- 
ing the  decision  of  the  Supreme  Court  in 
St.  John  V.  Van  Santvoord,  25  Wend.  660, 
and  explaining  Weed  v.  Saratoga  &  S.  R. 
R.,  19  Wend.  534;  Hood  v.  New  York  & 
N.  H.  R.  R.  Co.,  22  Conn.  1  ;  Elmore  v. 
Naugatuck  R.  R.  Co.,  23  lb.  457  ;  Farmers 
&  Mech.  Bank  v.  Champlain  Transporta- 
tion Co.,  16  Verm.  52,  18  lb.  140,  23  lb. 
209,  214,  and  note  by  Redfield,  J.  Where 
the  first  company  gave  a  ticket,  and  took 
pay  through,  it  has  been  held  to  be  respon- 
sible throughout  the  entire  route.  Bennett 
V.  Filyaw,  1  Florida,  403;  19  Wend.  534. 
Sec  also  Noyes  v.  Rutland  &  B.  R.  R.  Co., 
1  Williams  (Vt.)  110. 

In  England  it  has  been  held  that  when  a 
railway  company  takes  into  its  care  a  par- 
cel directed  to  a  particular  place,  and  does 
not  by  positive  agreement  limit  its  liability 
to  a  part  only  of  the  distance,  it  is  prima 
facie  evidence  of  an  undertaking  to  carry 
the  parcel  to  the  jjlace  to  which  it  is  di- 
rected, although  that  ]ilace  bo  beyond  the 
limits  within  which  the  company,  in  gen- 
eral, professes  to  cany  on  its  business  as  a 
carrier.  Muschamp  v.  Lancaster  &  P.  J. 
Railway,  8  M.  &  W.  421.  This  decision 
was  followed  in  Watson  v.  Ambergate,  N. 
&  B.  Railway,  3  Eng.  Law  &  Eq.  R.  497. 
See  also  Scotthorn  y.  South  Staff.  R.  Co., 
18  lb.  553.  But  this  view  of  the  law  is 
expressly  dissented  from  in  the  above-cited 
cases  in  1  Gray,  6  Hill,  18  Verm,  and 
22  Conn. 

Where  it  is  the  general  custom  of  a  car- 
rier to  forward  by  sailing  vessels  all  goods 
destined  for  points  beyond  the  end  of  his 
line,  he  is  not  liable  for  not  forwarding  a 
particular  article  by  a  steam-vessel,  unless 
the  direction  to  do  so  is  clear  and  unam- 
biguous. Simkins  v.  Norwich,  &c.  Steam 
boat  Co.,  11  Cush.  102. 

A  railroad  company,  as  a  common  car- 
rier of  merchandise,  is  responsible  as  a 
common  carrier,  until  the  goods  are  removed 
from  the  cars  at  the  place  of  delivery,  and 
placed  on  the  platform.  If  for  any  reason 
they  cannot  then  be  delivered,  or  if,  for  anv 


PART  IV.] 


CARRIERS. 


185 


cising  it  as  a  public  employment,  and  holding  himself  out  as  ready 
to  engage  in  the  transportation  of  money  or  goods  for  hire,  as  a 
business,  and  not  as  a  casual  occupation.^  This  description  in- 
cludes both  carriers  by  land  and  by  water  ;  namely,  proprietors  of 
stage  wagons,  coaches,  and  railroad  cars,  truckmen,  wagoners, 
teamsters,  cartmen,  and  porters ;  as  well  as  owners  and  masters 
of  ships  and  steamboats,  carrying  on  general  freight,  and  lighter- 
men, hoymen,  barge-owners,  ferrymen,  canal-boatmen,  and  other?) 
employed  in  like  manner.^  But  hackney-coachmen,  and  otliers, 
whose  employment  is  solely  to  carry  passengers,  are  not  regarded 
as  common  carriers  in  respect  of  the  persons  of  the  passengers,  but 
only  as  to  their  baggage,  and  the  parcels  which  they  are  in  the 
practice  of  conveying.^    Nor  is  evidence  that  the  defendant  kept 


reason,  the  consignee  Is  not  there  ready  to 
receive  thera,  it  is  the  duty  of  the  company 
to  store  them  and  preserve  them  safely  under 
the  charge  of  competent  and  faithful  ser- 
vants, ready  to  be  delivered,  and  actually 
to  deliver  them  when  duly  called  for  by  the 
parties  authorized  to  receive  them.  For 
the  performance  of  these  duties,  after  the 
goods  are  delivered  from  the  cars,  the 
company  is  liable  as  a  ivarehousemnn,  or 
as  a  keeper  of  goods  for  hire.  Thomas  v. 
Boston  &  Prov.  R.  R.,  10  Met.  472;  Nor- 
vvav  Plains  Co.  v.  Boston  and  M.  R.  R., 
1  Gray,  1&^  ;  Gibson  v.  Culver,  17  Wend. 
30,5 ;  Miller  v  Steam,  &c.  Co.,  13  Barb. 
361.  Sec  also  Garside  v.  Trent  &  Mers. 
Nav.,  4  T.  R.  581  ;  Hvde  v.  Same,  5  lb. 
389;  Webb's  case,  8  taunt.  443.  [*If 
an  arrangement  is  made  between  several 
connecting  railroad  companies  by  which 
goods  to  be  carried  over  the  whole  route 
shall  be  delivered  by  such  to  the  next  suc- 
ceeding company,  and  such  company  so 
receiving  them  shall  pay  to  its  predecessor 
the  amount  already  due  for  the  carriage, 
and  the  last  one  collect  the  whole  from  the 
consignee,  a  reception  of  such  goods  by  the 
last  company,  and  a  payment  by  it  of  the 
charge  of  its  predecessors,  will  not  render 
it  liable  for  an  injury  done  to  the  goods 
before  it  received  them.  Darling  v.  B.  & 
W.  R.  R.  Co.,  1 1  Allen,  295.  If  anything 
remains  to  be  done  by  the  consignor  of 
goods  or  his  agents,  after  their  delivery  to 
a  railroad  company,  before  they  are  ready 
for  transportation,  the  company  are  only 
responsible  for  them  as  warehousemen, 
and  not  as  common  carriers.  Judson  v. 
Western  R.  R.  Co.,  4  Allen,  520.] 

A  railroad  corporation  contracting  to 
transport  flour  and  deliver  it  "  on  board  " 
at  D.,  are  liable  as  common  carriers  for  its 
loss  by  fire  in  their  warehouses  at  D.,  be- 


fore final  delivery  "  on  board."     Moore  v. 
Michigan  C.  R.  Co.,  3  Mich.  (Gibbs)  23. 

It  seems  that  a  railroad  corporation  is 
not  obliged  to  give  notice  to  the  consignees 
of  the  arrival  of  goods,  transported  by  them> 
in  order  to  exonerate  themselves  from  their 
liability  as  common  carriers.  Norway 
Plains  Co.  v.  Boston  &  M.  R.  R.,  1  Grav, 
263.  But  see  Michigan  Cent.  R.  R.  'v. 
Ward,  2  Mich.  (Gibbs)  538;  Goold  r. 
Chapin,  10  Barb.  612,  13  Barb.  36 J.] 

^  Story  on  Bailm.  §  495  ;  [Fuller  v. 
Bradlev,  25  Penn.  State  R.  (1  Casev)  120; 
Russell"  V.  Livingston,  19  Barb.  346.*]  [*  In , 
an  action  against  a  street  railway  corpora- 
tion to  recover  for  the  loss  of  »  box  of  ■ 
merchandise  delivered  to  them  to  be  car- 
ried for  hive  on  the  front  platform  of  one 
of  their  cars,  the  plaintiff,  for  the  purpose 
of  showing  them  to  be  common  carriers  of 
goods,  may  prove  that  other  persons  had- 
paid  money  to  their  conductors,  with  the 
knowledge  of  their  superintendent,  for  the 
carriage  of  merchandise  by  them,  and  evi- 
dence that  two  other  persons  had  paid 
monej*  at  other  times  to  the  defendants' 
conductors  for  the  transportation  of  mer- 
chandise, with  the  knowledge  of  the  super- 
intendent of  the  road,  in  the  absence  of 
anything  to  control  or  contradict  it,  would 
be  sufficient  to  warrant  the  jury  in  find- 
ing that  the  defendants  had  assumed  to 
be  and  were  common  carriers.  Levi  v. 
Lynn  &  Boston  R.  Company,  11  Allen,  300. 
Whether  the  persons  engaged  in  towing 
boats  are  considered  common  carriers,  and 
should  be  held  responsible  as  such  for  the 
boats  towed  and  cargo,  qncere.  Ashmore 
V.  Penn.  S.  T.  &  Trans.  Co.,  4  Dutch.  180.] 

-  Story  on  Bailm.  §§  496,  497. 

3  Story  on  Bailm.  §§  498,  499,  590  -  604. 
[Expressmen  who  forward  goods  for  hire 
from  place  ro  place,  in  conveyances  owned 


186  LAW   OF  EVIDENCE,  [PART  IV. 

a  booking-office  for  a  considerable  number  of  coaches  and  wagons 
sufficient  of  iis^lf  to  prove  him  a  common  carrier.^ 

§  212.  The  contract  must  also  appear  to  have  been  made  with 
the  plainiijf  and  by  the  defendant.  If,  therefore,  the  goods  were 
sent  by  the  ven^ior  to  the  vendee,  at  the  risk  of  the  latter,  the  con- 
tract of  the  carrier  is  with  the  vendee,  whose  agent  he  becomes  by 
receiving  the  goods,  and  who  alone  is  entitled  to  sue ;  unless  the 
vendor  expressly  contracted  with  the  carrier,  in  his  own  behalf,  for 
the  payment  of  the  freight ;  or  the  property  was  not  to  pass  to  the 
vendee  until  the  goods  reached  his  hands ;  in  which  case  the  vend- 
or is  the  proper  plaintiff.^  If  goods  are  ordered  by  the  vendee, 
but  no  order  at  all  is  given  in  regard  to  sending  them ;  and  yet 
the  vendor  sends  them  by  a  common  carrier,  by  whom  they  are 
lost ;  the  carrier  in  such  case  is  the  agent  of  the  vendor  alone,  and 
the  action  for  the  loss  is  maintainable  by  him  only.^  So,  where 
the  goods  were  obtained  of  the  vendor  by  a  pretended  purchase, 
by  a  swindler,  who  got  possession  of  them  by  the  negligence  of  the 
carrier ;  as  no  property  had  legally  passed  to  the  consignee,  the 
carrier's  implied  contract  was  held  to  be  with  the  vendor  alone.* 
If  the  transaction  was  had  with  the  mere  servant  of  the  carrier, 
such  as  a  driver  or  porter,  the  contract  is  legally  made  with  the 
master ;  unless  the  servant  expressly  undertook  to  carry  the  pai 
eel  on  his  own  account;  in  which  case  he  is  liable.^     And  it  is 

by  others,  are  not  liable  as  common  carri-  2  Dawes  v.  Peck,  8  T.  R.  330,  332  • 
ers,  but  as  bailees  for  hire  to  forward  Hart  v.  Sattley,  3  Campb.  528 ;  Moore  v 
goods  by  the  ordinary  modes  of  convey-  •  Wilson,  1  T.  R.  659 ;  Davis  v.  James,  J 
ance.  Hersfield  v.  Adams,  19  Barb.  577.]  Burr,  2680 ;  Sargent  v.  Morris,  3  B.  & 
1  Upston  V.  Slark,  2  C.  &  P.  598.  [A  Aid.  277.  [*  A  carrier  may  presume,  in 
keeper  of  a  public-house  in  the  neighbor-  the  absence  of  some  notice  to  the  contrary, 
hood  of  a  railway  station  gave  public  that  the  consignee  is  owner  of  the  goods. 
notice  that  he  would  furnish  a  free  con-  Sweet  i'.  Barney,  23  N.  Y.  335.  The  biP 
veyance  to  and  from  the  cars  to  all  passen-  of  lading  or  receipt  of  the  carrier  is  suffi- 
gers  with  their  baggage,  travelling  thereby,  cient  to  establish  such  a  prima  facie  case 
who  should  come  to  liis  house  as  guests,  of  ownership  as  will  enable  a  party  to  sus- 
and  for  this  purpose  employed  the  proprie-  tain  an  action  for  a  breach  of  contract  oii 
tors  of  certain  carriages  to  take  all  such  the  part  of  the  carrier.  Arbuckle  r 
passengers  free  of  charge  to  them,  and  to  Thompson,  37  Penn.  St.  170.] 
convey  tiiem  and  their  baggage  to  his  3  Coats  v.  Chaplin,  3  Ad.  &  El.  483,  N 
house.  A  traveller  by  the  cars,  to  whom  S.  And  see  Freeman  v.  Birch,  Id.  491,  r.. 
this  arrangement  was  known,  employed  *  Duffy.  Budd,  3B.  &B.  177;  Stephen- 
one  of  the  carriages  thus  provided  to  take  son  v.  Hart,  4  Bing.  476. 
him  and  his  baggage  to  such  public-house,  &  Williams  v.  Cranston,  2  Stark  R.  82. 
and  his  baggage  was  lost  or  stolen  on  [Where  the  bailee  of  property  del'-ers  it 
the  way,  through  a  want  of  due  care  or  to  a  common  carrier  for  tr»*:3portation, 
Bkill  on  the  part  of  the  pro])rietor  of  the  either  the  bailee  or  the  bail:;fr,  may  main- 
carriage  or  his  driver,  and  tlie  keeper  of  tain  an  action  against  the  carrier  for  its 
the  house  was  held  liable  therefor,  either  loss.  Elkins  v.  Boston  &  Maine  R.  K., 
as  an  innkeeper  or  as  a  common  carrier,  it  19  N.  H,  337;  Moran  v.  Portland,  &c. 
being  immaterial  which.  Dickinson  v.  Co.,  35  Maine,  55.  A  servant  travelling 
Winchester,  i  Cush   114.1  with  his  master  on  a  railway,  may  have 


PARI  IV.] 


CARRIERS. 


187 


sufficient  if  the  goods  were  delivered  to  a  person,  and  at  a  house 
where  parcels  were  in  the  habit  of  being  left  for  the  carrier. ^ 

§  213.  If  a  receipt  was  given  for  the  goods,  it  should  be  pro- 
duced ;  and  notice  should  be  given  to  the  defendant  to  produce 
his  book  of  entries,  and  way-bill,  if  any,  in  order  to  show  a  delivery 
of  the  goods  to  him.^  The  plamtiflf  should  also  prove  what  orders 
were  given  at  the  time  of  delivery,  as  to  the  carriage  of  the  goods, 
and  the  direction  written  upon  the  package.^  If  the  loss  or  non- 
delivery of  the  goods  is  alleged,  the  plaintiff  must  give  some  evi- 
dence in  support  of  the  allegation,  notwithstanding  its  negative 
character.*  And  in  proof  of  the  loss,  the  declaration  of  the  de- 
fendant's coachman  or  driver,  in  answer  to  an  inquiry  made  of 
him  for  the  goods,  is  competent  evidence  for  the  plaintiff.^  In 
proof  of  the  coyitents  of  a  lost  trunk  or  box,  it  has  been  held  that 
the  plaintiff's  own  affidavit  is  admissible,  where  the  case,  from  its 
nature,  furnishes  no  better  evidence.^ 


an  action  in  his  own  name,  against  the 
railway  company  for  the  loss  of  his  lug- 
gage, although  the  master  took  and  paid 
for  his  ticket.  Marshall  v.  York,  &c.  Rail- 
way Co.,  7  Eng.  Law  &  Eq.  519.] 

1  Burrell  v.  North,  2  C.  &  K.  681.  [See 
also  Mayall  v.  Boston  &  Maine  R.  R.,  19 
N.  H.  122.  The  common  hands,  or  crew, 
of  a  vessel  have  no  general  authority,  as 
agents  of  the  owners,  to  receive  goods. 
Trowbridge  v.  Chapin,  23  Conn.  595,  20 
Conn.  354 ;  and  when  common  carriers 
advertise  that  a  faithful  special  messenger 
is  sent  in  charge  of  each  express,  this  is  not 
evidence  that  the  messenger  has  authority 
to  receive  freight.  Thurman  v.  Wells,  18 
Barb.  (N.  Y.)  500. 

The  deposit  of  a  trunk  in  the  nsual 
place  for  passengers'  baggage  on  a  steam- 
i)oat  is  not  a  sufficient  delivery,  unless 
the  owner  of  the  trunk  takes  passage  also. 
Wright  V.  Caldwell,  3  Mich.  (Gibbs)  51. 
If  a  common  carrier  receives  goods  into 
his  own  warehouse  for  the  accommodation 
of  himself  and  his  customers,  so  that  the 
deposit  there  is  a  mere  accessory  to  the 
carriage  and  for  the  purpose  of  facilitat- 
ing it,  his  liability,  as  a  common  carrier, 
begins  with  the  receipt  of  the  goods. 
Clarke  v.  Needles,  25  Penn.  State  R.  (1 
Casey)  338.  See  Maybin  v.  Railroad  Co., 
8  Rich.  (S.  C.)  240.]  [*  In  Chouteau  v. 
Steamboat  St.  Anthony,  16  Mis.  216,  it  is 
held  that  the  act  of  the  captain  of  a  boat, 
in  taking  bank-bills  for  transportation,  is 
not  prima  facie  evidence  of  the  liability  of 
the  boat  as  a  common  carrier.  But  to 
render  the  boat  thus  liable,  it  must  be  its 
usage  to  carry  bills  for  hire,  or  the  known 


usage  of  the  trade  that  it  should  so  carry 
them.  See  also  Haynie  v.  Waring  &  Co., 
29  Ala.  R.  263.  Our  own  views  are  ex- 
pressed in  Farmers  &  Mechanics'  Bank  v. 
The  Champlain  Transportation  Co.,  23  Vt. 
186,  203,  204,  where  it  was  held  that  it 
was  not  necessary  to  show  by  positive 
proof  that  the  company  consented  that  the 
captain  of  their  boat  should  carry  money 
on  their  account  in  order  to  hold  the  com- 
pany responsible  for  the  loss  of  the  money. 
The  captain  of  the  boat  is  to  be  regarded 
as  the  general  agent  of  the  owners,  and 
prima  facie  the  owners  are  liable  for  all 
contracts  for  carrying,  made  by  the  cap- 
tain or  other  general  agent,  for  that  pur- 
pose, within  the  powers  of  the  owners 
themselves ;  and  the  burden  rests  upon 
them  to  show  that  the  plain  tiifs  had  made 
a  private  contract  with  the  captain  which 
it  was  understood  should  be  kept  from  the 
knowledge  of  the  defendants,  or  else  had 
given  credit  exclusively  to  the  captain. 
See  also  2  Redfield  on  Railways,  -1 1 .] 

2  Where  there  are  several  owners,  but 
the  receipt  mentions  some  of  them  only,  it 
is  still  admissible  evidence  for  them  all, 
accompanied  by  proof  of  title  in  them  all. 
Day  V.  Ridley,  16  Verm.  R.  (1  Washb.)  48. 

3  2  Stark.  Ev.  200. 

*  Tucker  v.  Cracklin,  2  Stark.  R.  385 ; 
Griffith  V.  Lee,  1  C.  &  P.  110;  Bay  v.  Rid- 
ley, 1  Washb.  48 ;  [Woodbury  v.  Frink, 
14  111.  279.] 

5  Mayhew  v.  Nelson,  6  C.  &  P  58.  But 
proof  of  a  loss  will  not  alone  support  a 
count  in  trover.  Ross  v.  Johnson,  5  Burr, 
2825. 

s  See  ante,  Vol.    1,   §  348;   David  v 


188  LAW   OF  EVIDENCE.  [PART  IV. 

§  214.  If  several  are  jointly  interested  in  the  profits  of  a  coach 
or  wagon,  whether  it  be  owned  by  one  or  all,  they  are  jointly  lia- 
ble, though,  by  agreement  among  themselves,  one  finds  the  horses 
and  driver  for  one  part  of  the  road  only,  and  another  for  another.^ 
If  the  declaration  is  in  assumpsit^  a  joint  contract  by  all  the  de- 
fendants must  be  proved,  by  evidence  of  their  joint  ownership,  or 
otherwise.  And  if  the  action  is  in  tort^  setting  forth  the  contract, 
the  contract  itself  must  be  proved  as  laid  ;  though,  where  the  ac- 
tion is  founded  on  a  breach  of  common  law  duty,  which  is  a  mis- 
feasance, and  is  several  in  its  nature,  as  in  an  action  against  com- 
mon carriers,  upon  the  custom,  judgment  may  be  rendered  against 
some  only  and  not  all  of  the  defendants.^ 

§  215.  It  is  now  well  settled,  that  a  common  carrier  may  qual- 
ify his  liability  by  a  general  notice  to  all  who  may  employ  him  of 
any  reasonable  requisition  to  be  observed  on  their  part,  in  regard 
to  the  manner  of  delivery  and  entry  of  parcels,  and  the  informa- 
tion to  be  given  to  him  of  their  contents,  the  rates  of  freight,  and 
the  like  ;  as,  for  example,  that  he  will  not  be  responsible  for  goods 
above  the  value  of  a  certain  sum,  unless  they  are  entered  as  such, 
and  paid  for  accordingly.  But  the  right  of  a  common  carrier,  by 
a  general  notice,  to  limit,  restrict,  or  avoid  the  liability  devolved 
on  him  by  the  common  law  on  the  most  salutary  grounds  of  public 
policy,  has  been  denied  in  several  of  the  American  courts,  after 
the  most  elaborate  consideration  ;  ^  and  therefore  a  public  notice 
by  stage-coach  proprietors,  that  "  all  baggage  "  was  "  at  the  risk 
of  the  owners,"  though  the  notice  was  brought  home  to  the  plain- 
tiflf,  has  been  held  not  to  release  them  from  their  liability  as  com- 
mon carriers.^     Nor  does  such  a  notice  apply  at  all  to  goods  not 

Moore,  2  "Watts  &  Serg.  230.     And   see  see  Barton  v.  Hanson,  2  Taunt.  49  ;  Hels- 

Butler  V.  Basing,  2  C.  &  P.  613  ;  [Dibble  by  v.  Mcers,  5  B.  &  C.  504. 

V.   Brown,  12   Geo.  217  ;  Mad.  River,  &c.  ^  Bretherton  v.  Wood,  3  B.  &  S.  54 ; 

Railroad   y.  Fulton,   20   Ohio,   318.]     In  Bank  of  Orange  y.  Brown,  3  Wend.  158. 

Clark  V.   Spence,  10  Watts,  335,  it  was  See  a?!<e,  Vol.  1,  §  64. 

thought  by  Rogers,  J.,  that  this  rule  ap-  ^  But  it  is  admitted  in  England,     See 

plied   with   peculiar  force  to  wearing  ap-  Austin  v.  The  Manchester,  «&c.  Railw.  Co., 

parel,  and  other  articles  convenient  for  a  16  Jur.   763,   11  Eng.  Law  &  Eq.  R.  506; 

traveller,  which  in  most  cases  are  packed  Carr  v.  The  Lancashire  &  Yorkshire  Raihv. 

by  the  party  himself,  in  his  own  trunk,  Co.,  7  Exch.  R.  707,  21  Law  J.  Exch. 

and  which  would  therefore  admit  of  no,  261,  6    Monthly  Law  R.  222,    14    Eng 

other  proof.     But  it  has  been  decided,  in  Law  &  Eq.  R.  340. 

a  recent  case  against  a  railroad  company,  *  Hollister  v.  Newlen,  19  Wend.  234  ; 

for  tlie  loss   of  a  traveller's   trunk,    that  Colo  v.  Goodwin,  lb.  251  ;  Jones  v.  Voor- 

tho    plaintiff   could    not    be    a    witness,  hees,  10  Ohio,  R.  145  ;  Story  on  Bailm. 

Snow    V.    Eastern   R.    R.    Co.,    12   Met.  §  554  (2d  edit),  note;  Fisk  v.  Chapman, 

44.  2  Kelly,  349;  Sager  v.  The   Portsmouth 

1  Waland  v.  Elkins,  1   Stark.  R.  272  ;  Railr.  Co.,  1    Rcdingt.  228 ;  [Kimball  v. 

Fromout  v.  Coupland,  2  Bing.  170.    And  Rutland  R.  R.  26  Verm.  247  ;  Farmers', 


PART  IV.J 


CARRIERS. 


I8y 


belonging  to  any  passenger  in  the  coach. ^  But  in  other  American 
courts  it  is  held,  that  such  limitations,  under  proper  qualifications 
and  safeguards  for  securing  due  notice  to  the  traveller,  or  the 
party  for  whom  the  goods  are  to  be  transported,  may  be  operative 
and  binding  on  the  parties.^ 

§  216.  But  in  every  case  of  public  notice,  the  burden  of  proof  is 
on  the  carrier^  to  show  that  the  person  with  whom  he  deals  is 
fully  informed  of  its  tenor  and  extent.^  And  therefore,  if  any 
advertisement  is  posted  up,  emblazoning  in  large  letters  the  ad- 
vantages of  the  conveyance,  but  stating  the  limit  of  his  liability  in 
small  characters,  at  the  bottom,  it  is  not  suflScient,*     It  must  be 


&c.  Bank  v.  Champlain  Trans.  Co.,  23  lb. 
186  ;  Dorr  v.  New  Jersey,  &c.  Co.,  1  Ker- 
nan  (N.  Y.)  485;  Coxe  v.  Heislev,  19 
Penn.  (7  Harris)  243  ;  Davidson  v'  Gra- 
ham, 2  Ohio  (N.  S.)  131.]  The  right  of 
a  common  carrier  in  England  to  limit  or 
affect  his  liability  at  common  law,  is  now 
restricted  by  Stat.  11  Geo.  4,  &  1  W.  4, 
ch.  68,  to  certain  enumerated  articles,  ex- 
ceeding £10  in  value,  the  nature  and  value 
of  which  must  be  declared  at  the  time  of 
delivery,  and  an  increased  charge  paid  or 
engaged;  the  notice  to  that  efiect  to  be 
conspicuously  posted  up  in  the  receiving- 
house,  which  shall  conclusively  bind  the 
parties  sending  Avithout  further  proof  of 
its  having  come  to  their  knowledge.  But 
this  statute,  it  seems,  does  not  protect  the 
carrier  from  the  consequences  of  his  own 
gross  negligence.  Owen  v.  Burnett,  2  C. 
&  M.  353.  [*  Under  the  English  statute, 
17  &  18  Vict.  c.  31,  §  7,  the  carrier  can 
only  restrict  his  common-law  responsibility 
by  a  reasonable  limitation,  which  is  em- 
braced in  a  written  contract  signed  by  the 
party  interested,  or  his  agent,  and  such 
contract  must  either  in  itself,  or  by  refer- 
ence, set  out  or  embody  the  condition.  A 
general  notice  only  consented  to  by  the 
party  would  be  valid  for  limiting  the  com- 
mon-law liability  of  the  carrier ;  but  it 
must  under  the  statute  be  embodied  in  a 
formal  contract  in  writing,  signed  by  the 
owner  or  person  delivering  the  goods,  and 
must  be  decided  to  be  reasonable  by  the 
court.  Peek  v.  North  Staffordshire  Eailw. 
Co.,  9  Jur.  N.  S.  914 ;  S.  C.  10  Ho.  Lords 
Cas.  473.  A  condition  exempting  the 
carrier  from  all  responsibility  is  unreason- 
able, and  so  is  a  condition  that  the  carrier 
shall  not  be  responsible  for  any  damage 
unless  pointed  out  at  the  time  of  delivery 
bv  the  carrier.  Lloyd  v.  Waterford  &  Lim- 
erick Railw.  Co.,  9  Law  T.  N.  S.  89,  15 
Ir.  Com.  L.  37  ;  Allday  v.  Great  Western 
RaiJw.  Co.,  11  Jur.  N.  S.  13-     The  burden 


of  showing  the  reasonableness  of  a  condi- 
tion annexed  to  the  carrier's  undertaking 
rests  upon  such  carrier.  Peek  v.  North 
Staffordshire  Railw.  Co.,  supra,  2  Redfield 
on  Railways,  95  -  98.] 

1  Dwight  V.  Brewster,  1  Pick.  50.  And 
see  Camden  &  Amboy  Railroad  Co.  v. 
Burke,  13  Wend.  611.  But  a  special  con- 
tract may  always  be  shown  by  the  carrier, 
in  avoidance  of  his  general  liability.  Chip- 
pendale V.  The  Lancashire,  &c.  Railw.  Co., 
15  Jur.  1106  ;  Story  on  Bailments,  §  549. 
[*  York  Company  v.  Central  Railroad,  3 
Wallace,  U.  S.  R.  107  ;  Ashmore  v.  Penn. 
S.  T.  &  Trans.  Co.,  4  Dutch,  180.  A  spe- 
cial contract  lessening  general  responsi- 
bility will  not  excuse  negligence.  Goldey 
r.  Penn.  Railw.,  30  Penn.  St.  242.] 

2  Brown  v.  The  Eastern  Railroad  Co , 
S.  J.  C.  ^L^ss.,  March,  1853,  6  Monthly 
Law  Rep.  217  ;  [11  Cush.  99.  This  point, 
if  conceded,  was  not  decided  in  this  case.] 
And  see  Bingham  v.  Rogers,  6  Watts  & 
Serg.  495  ;  Laing  v.  Colder,  8  Barr.  484  ; 
Swindler  v.  Hilliard,  2  Rich.  286.  [*But 
most  of  the  American  cases  admit  that 
carriers  may  restrict  their  general  liability, 
by  notices  brought  home  to  the  knowledge 
of  the  owner  of  the  goods,  before  or  at  the 
time  of  delivery  to  the  carrier,  if  assented 
to  by  the  owner,  which  is  but  another  form 
of  defining  an  express  contract,  which 
seems  to  be  everyAvhere  recognized  as  bind- 
ing upon  those  contracting  with  carriers, 
unless  New  York  may  form  an  exception. 
2  Redfield  on  Railw.  78.  New  Jersey 
Steam  Nar.  Co.  v.  Merchants'  Bank,  6 
How.  (U.  S.j  344.  See  Moses  v.  Boston 
&  Maine  Railw.,  4  Foster,  71.] 

3  Butler  V.  Heane,  2  Campb.  415,  per 
Ld.  Ellenborough ;  Kerr  v.  Willani,  2  Stark. 
R.  53 ;  Macklin  v.  Waterhouse,  5  Bing. 
212. 

*  Butler  r.  Heane,  2  Campb.  415,  per 
Ld.  Ellenborough ;  Kerr  r.  Willan,  2  Stark. 
R.  53 ;  Macklin  r.  Waterhouse,  5  Bing. 


190  LAW   OF   EVIDENCE.  [PART  IV. 

in  such  characters  and  situation,  that  a  person  delivering  goods 
at  the  place  could  not  fail  to  read  it,  without  gross  negligence ; 
and  even  then,  it  affects  only  those  whose  goods  are  received  at 
that  place ;  for  if  received  at  a  distance  from  the  carrier's  office, 
though  at  an  intermediate  point  between  the  termini  of  his  route, 
he  must  prove  notice  to  the  owner  through  some  other  medium.^ 
And  in  an  action  against  a  carrier,  the  defendant  must  satisfy  the 
jury  that  the  notice  was  actually  communicated  tO/  the  plaintiff. 
If  it  was  posted  up,  or  advertised  in  a  newspaper,  it  must  appear 
that  he  read  it.  In  the  latter  case,  the  advertisement  affords  no 
ground  for  an  inference  of  notice,  unless  it  be  proved  that  the 
plaintiff  was  in  the  habit  of  taking  or  reading  the  newspaper,  in 
which  it  was  inserted ;  and  even  then,  the  jury  are  not  bound 
to  find  the  fact.^  In  the  case  of  notice  posted  up  in  the  car- 
rier's office,  proof  that  the  plaintiff's  servant,  who  brought  the 
goods,  looked  at  the  board  on  which  the  notice  was  painted,  is 
not  sufficient,  if  the  servant  himself  testifies  that  he  did  not 
read  it.^ 

§  217.  Where  there  are  several  notices,  the  carrier  must  take 
care  that  they  are  all  of  the  same  tenor ;  for  if  they  differ  from 
each  other,  he  will  be  bound  by  that  which  is  least  favorable  to 
to  himself.* 

§  218.  If  such  notice  is  proved  by  the  carrier,  and  brought  home 
to  the  knowledge  of  the  plaintiff,  its  effect  may  be  avoided  by  evi- 
dence, on  the  part  of  the  plaintiff,  that  the  loss  was  occasioned  by 
the  malfeasance,  misfeasance,  or  negligence,  of  the  carrier  or  his 
servants ;  for  the  terms  are  uniformily  construed  not  to  exempt 

212.  [*2  Redfield  on  Railw.  80;  Verner  i  Clayton  v.  Hunt,  3  Campb.  27;  Gou- 
V.  Sweitzer,  32  Penn.  St.  208. J  [A  notice  gcr  v.  Jolly,  Holt's  Cas.  317. 
in  the  English  laniruage,  to  a  German,  ^  Eowley  t".  Home,  3  Binsj.  2,  10  Moore, 
ignorant  of  the  English  ian;:i;nagc,  is  not  247  ;  Leeson  v.  Holt,  1  Stark.  R.  186. 
sufficient.  Camden  &  Amboy  R.  R.  v.  ^  Kerr  v.  Willan,  2  Stark.  R.  53,  6  M. 
Baldauf,  4  Harris,  67.  A  notice  that  a  &  S.  1.50;  Davis  v.  WiHan,  2  Stark.  R. 
railroad  corporation  "  will  not  be  liable  for  279.  The  printed  conditions  of  a  lino  of 
baggage  of  passengers  beyond  a  certain  public  coaches  are  sufficiently  made  known 
amount,  unless,"  &c.  printed  on  the  back  to  passengers  by  being  posted  up,  in  con- 
of  the  passage  ticket,  and  detached  from  spicuous  characters,  at  the  place  where 
what  ordinarily  contains  all  that  is  mate-  they  book  their  names.  And  where  the 
rial  to  the  passenger  to  know,  does  not  handbill,  containing  such  conditions,  had 
raise  a  legal  presumption  that  the  party  been  posted  up  four  years  before,  and 
at  the  time  of  receiving  the  ticket,  and  be-  could  not  now  be  found,  parol  evidence  of 
fore  the  train  leaves  the  station,  had  knowl-  its  contents  was  held  admissible.  White- 
edge  of  such  limitations  and  conditions,  sell  v.  Crane,  8  W.  &  S.  369. 
It  is  a  question  for  the  jury  whether  the  *  Munn  ;;.  Baker,  2  Stark.  R.  2.')6  ;  Cob- 
plaintiff  knew  of  the  notice  before  com-  den  v.  Bolton,  2  Campb.  108  ;  Gouger  r. 
Tjfncing  the  journey.  Brown  «.  Eastern  Jolly,  Holt's  Cas.  317;  Story  on  Bailm 
R.  R.,  n  Cush.  97.]  §  558. 


PART  IV.]  CARR^RS.  191 

him  from  such  losses.^  Thus,  if  he  converts  .ihe  goods  to  a  wrong 
use,  or  delivers  them  to  the  wrong  person,  he  is  liable,  notwith 
standing  such  notice.^  So,  though  there  be  notice  by  a  passenger- 
carrier,  that  "  all  baggage  is  at  risk  of  the  owner,"  he  will  still  be 
liable  for  any  loss  occasioned  to  the  baggage  by  a  culpable  defect 
in  the  vehicle.^  The  effect  of  the  notice  may  also  be  avoided  by 
proof  of  a  ivaiver  of  it,  on  the  part  of  the  carrier ;  as,  if  he  is  in- 
formed of  the  value  of  the  parcel,  and  is  desired  to  charge  what 
he  pleases,  which  shall  be  paid  if  the  parcel  is  taken  care  of;  and 
he  charges  only  the  ordinary  freight ;  *  or,  if  he  expressly  under- 
takes to  carry  a  parcel  of  more  than  the  limited  value,  for  a  spe- 
cified compensation.^  But  in  all  such  cases  of  notice,  the  burden 
of  proof  of  the  negligence,  malfeasance,  or  misfeasance,  or  of  the 
waiver,  is  on  the  party  who  sent  the  goods.^ 

§  219.  It  is  ordinarily  a  good  defence  for  a  private  carrier,  that 
the  loss  or  injury  to  the  goods  was  occasioned  by  inevitable  acci- 
dent ;  but  a  common  carrier  is  responsible  for  all  losses  and  dam- 
ages, except  those  caused  by  the  act  of  God,  or  by  public  enemies. 
By  the  act  of  God,  is  meant  a  natural  necessity,  which  could  not 
have  been  occasioned  by  the  intervention  of  man,  but  proceeds 
from  physical  causes  alone  ;  such  as,  the  violence  of  the  winds  o. 
seas,  lightning,  or  other  natural  accident.'^  Therefore,  if  the  loss 
happened  by  the  wrongful  act  of  a  third  person  ;  ^  or,  by  an  acci- 
dental fire,  not  caused  by  lightning;^  or,  by  the  agency  of  the 
propelling  power  in  a  steamship  ;  '^^  or,  by  striking  against  the  mast 

1  Story  on  Bailm.  §§  570,  571  (3d  ed.) ;  ^  pgr  Ld.  Mansfield,  in  Forward  v.  Pit- 

Wild   V.  Pickford,  8  M.  &  W.  461  ;  New-  tard,  1  T.  R.  27  ;  Story  on  Bailm.  §§  25, 

born  ».  Just,  2  C.  &  P.  76.     [*  Sairer  w.  511 ;  Propr's  Trent  Nav.  v.  Wood,  3  Esp 

The  P.  S.  &  P.  Railw.  Co.,  31  Maine,'^228 ;  127,  131  ;  Gordon  v.  Little,  8  S.  &  R.  553, 

Ashmore  !;.  Penn.  Steam  Towing  &  Trans.  557;  Colt   v.    McMeclicn,  6  Johns.  160; 

Co.,  4  Dutcher,  180.  Hodgdon  y.  Dexter,  1   Cranch,  360;  Ab- 

"  Ibid. ;  Wild  r.  Pickford,  8  M.  &  W.  bott  on  Shipping,  p.  250  ;  1  Bell,  Comm. 

443  ;  Hawkins  v.  Hofftnan,  6  Hill  (N.  Y.)  489.     [*  The  exception  of  the  act  of  God, 

R.  586.  or  inevitable  accident,  has  by  the  decisions 

^  Camden   &  Amboy   Railroad  Co.   v.  of  the  courts  been  restricted  to  such  nar- 

Burke,  13  Wend.  611,  627,  628;  Story  on  row  limits,  as  scarcely  to  amount  to  any 

Bailm.  §  571  a.  relief  to  carriers.     It  is  in  reality  limited 

*  Story  on  Bailm.  §  572  ;  Wilson  r.  Free-  to   accidents    which    come    from   a  fore 

man,  5  Campb.  527.   In  this  case,  however,  superior   to  all  human  agency,  either  n. 

the  carrier  declared  his  intention  to  charge  their    production   or  resistance.     2  Red 

at  a  higher  rate  than  for  ordinary  goods.  field  on  Railways,  4,  and  notes  and  cases 

»  Helsby  r.  Mears,  5  B.  &  C.  564.    Mere  cited.] 

notice  of  the  value  of  the  parcel  is  not  of  ^3  Esp.  131,  per  Ashhurst,  J. 

itself  sufficient  to  do  away  the  effect  of  the  ^  Hyde  v.  Trent  and  Mersey  Nav.  Co. 

general   notice.      Levi   v.  Waterhouse,    1  5  T.  R.  387  ;  Forward  v.  Pittard,  1  T.  B. 

Price,  280.  27. 

«  Harris  v.  Packwood,  3    Taunt.   264 ;  i*^  Hale  v.  The  New  Jersey  Steam  Na* 

Marsn  v.  Home.  5  B.  &  C.  322.  Co. .  i  "^  jonn.  R.  539. 


192 


LAW   OF  EVIDENCE. 


[part  IV. 


of  a  sunken  vessel,  carelessly  left  floating ;  ^  or,  by  mistaking  a 
light ;  the  carrier  is  liable.^  And  if  divers  causes  concur  in  the 
loss,  the  act  of  God  being  one,  but  not  the  proximate  cause,  it  does 
not  discharge  the  carrier.^  But  where  the  loss  was  occasioned  by 
the  vessel  being  driven  against  a  bridge,  by  a  sudden  gust  of 
wind ;  *  or,  by  a  collision  at  sea,  without  fault ;  ^  or,  by  being  upset 
in  a  sudden  squall ;  ^  or,  by  the  vessel  getting  aground  by  a  sudden 
failure  of  wind  while  tacking ;  '^  or,  by  striking  against  a  sunken 
rock,  or  snag,  unknown  to  pilots ;  ^  in  these  and  the  like  cases,  the 
carrier,  if  he  is  not  in  fault,^  has  been  held  not  liable.  In  regard 
to  losses  occasioned  by  force,  it  must  have  been  the  act  o^  public  ene- 
mies ;  for  if  the  goods  were  taken  by  robbers,  or  destroyed  by  a 
mob,  though  by  force  which  he  could  not  resist,  a  common  carrier 
is  held  responsible  for  the  loss.^''  In  all  cases  of  loss  by  a  common 
carrier,  the  burden  of  proof  is  on  him,  to  show  that  the  loss  was  oc- 


1  Smith  V.  Shepherd,  Abbott  on  Ship- 
ping, pp.  252,  253.  The  owner  of  a  vessel 
sunk  while  in  his  possession,  so  as  to  ob- 
struct a  public  navigable  river,  who  has 
without  any  wrongful  act  relinquished  the 
possession,  is  not,  in  all  cases,  and  for  an 
indefinite  time,  bound  to  give  notice,  or 
take  other  means,  to  prevent  damage  from 
coming  thereby  to  other  vessels  ;  though 
it  seems  there  may  be  circumstances  in 
which  tlie  owner,  even  after  a  blameless 
relinquishment  of  the  possession,  may  still 
oe  required  to  take  care  that  other  vessels  be 
not  injured  by  striking  against  a  sunken 
vessel.  Brown  v.  Mallett,  12  Jur.  204. 
QiKsre,  therefore,  whether,  if  the  owner  has 
abandoned  the  possession  and  property, 
and  taken  all  due  care,  but  nevertheless  a 
carrier  vessel  is  lost  by  striking  upon  the 
sunken  one,  it  is  the  act  of  God,  or  not. 
See  3  Am.  Law  Journ.  221,  N.  S. 

2  McArthur  u.  Sears,  21  Wend.  190. 

»  Ewart  V.  Street,  2  Bailey,  R.  157; 
Richards  v.  Gilbert,  5  Day,  R.  415  ;  Camp- 
bell V.  Morse,  1  Harper's  Law  R.  468 ; 
Hahn  v.  Corbctt,  2  Bing.  205.  And  see 
Gordon  v.  Little,  8  S.  &  R.  533  ;  Hart  v. 
Allen,  2  Watts,  114;  Jones  v.  Pitcher,  3 
Stew.  &  Port.  135;  Sprowl  v.  Kellar,  4 
Stew.  &  Port.  382 ;  [New  Brunswick  Co. 
V.  Tiers,  4  Zabr.  (N.  J.)  697.]  [* Fergus- 
son  V.  Brent,  12  Md.  9.] 

*  Amies  v.  Stephens,  1  Stra.  128. 

s  Buller  V.  Fisher,  Peake,  Add.  Cas. 
183. 

^  Spencer  v.  Daggett,  2  Verm.  R.  92. 
So,  if  thrown  over  in  a  storm,  for  preserva- 
tion of  the  ship  and  passengers.  Smith  v. 
Wright.  I  Caines,  R.  43, 


">  Colt  V.  McMechen,  6  Johns.  160. 

8  Williams  v.  Grant,  1  Conn.  R.  487  ; 
Smyrl  v.  Niolon,  2  Bailey,  R.  421  ;  Turner 
V.  Wilson,  7  Yerger,  R.  340 ;  Baker  v. 
The  Hibernia,  4  Am.  Jur.  1,  N.  S.  [Where 
a  violent  storm  caused  an  usually  low  tide, 
and  the  carrier's  barge,  lying  at  the  pier 
which  he  used,  was  pierced  by  a  projecting 
timber,  covered  at  ordinary  tides,  and  not 
known  by  the  carrier  to  exist,  he  was  held 
liable,  although  his  individual  negligence 
in  leaving  his  barge  there  would  not  have 
produced  the  injury,  without  the  concur- 
rence of  the  act  of  God  and  the  negligence 
of  the  wharf  builder.  New  Brunswick 
Co.  V.  Tiers,  4  Zabr.  (N.  J.)  697.  See 
also  Friend  ».  Woods,  6  Gratt.  189.] 

^  Williams  I'.  Bransen,  1  Murph.  417. 
Spencer  v.  Daggett,  2  Verm.  92 ;  Marsli 
V.  Blythe.  1  iVIcCord,  360.  [*  In  Read  v. 
Spalding,  30  N.  Y.  R.  630,  where  goods 
were  damaged  by  a  flood  rising  higher 
than  ever  before,  and  which  it  was  no  neg- 
ligence not  to  have  anticipated,  and  from 
which  the  goods  could  not  be  delivered 
after  the  extent  of  the  rise  was  seen,  it  was 
held  to  have  occurred  by  the  act  of  God, 
unless  the  carrier  was  in  fault  in  not  having 
sooner  sent,  the  goods  to  tlieir  destination, 
and  if  so  in  fault,  then  he  was  rcsponsilile 
S.  P.  Michaels  v  N.  Y.  Centr.  Kailw.,  30 
N.  Y.  R.  564.  See  also  Merritt  v.  Earle, 
29  N.  Y.  R.  115.] 

w  3  E.sq.  131,  132,  per  Lord  Mansfield 
and  Buller,  J.  [*  Loss  by  pirates  is  re 
garded  as  a  loss  by  the  public  enemy.  Ma- 
gellan Pirates,  25  Eng.  L.  &  Eq.  595 
Sec  Bland  v.  Adams  Ex.  Co.,  1  Duvidl 
232] 


PART  I  V.J  CARRIERS.  193 

casioned  by  the  act  of  God,  or  by  public  enemies.^  And  if  the  ac- 
ceptance of  the  goods  was  special,  the  burden  of  proof  is  still  on 
the  carrier,  to  show,  not  only  that  the  cause  of  the  loss  was  within 
the  terms  of  the  exception,  but  also  that  there  was  on  his  part  no 
negligence  or  want  of  due  care.^  Thus,  where  goods  were  received 
on  board  a  steamboat,  and  the  bill  of  lading  contained  an  excep- 
tion of  "  the  dangers  of  the  river,"  and  the  loss  was  occasioned  by 
the  boat's  striking  on  a  sunken  rock ;  it  was  held  incumbent  on 
the  carrier  to  prove  that  due  diligence  and  proper  skill  were  used 
to  avoid  the  accident.^ 

§  220.  A  carrier  may  repel  the  charge  of  the  plaintifif,  by  evidence 
of  fraud  in  the  plaintiff  himself,  in  regard  to  the  goods ;  or  by 
proof,  that  the  loss  resulted  from  the  negligence  of  the  plain- 
tiff in  regard  to  their  packing  or  delivery ;  or  from  internal  defect 
without  his  fault.*  Thus,  where  the  plaintiff  had  just  grounds  to 
apprehend  the  seizure  of  his  goods  by  rioters,  which  he  concealed 
from  the  carrier  when  the  goods  were  received  by  him  for  tran& 
portation,  and  they  were  seized  and  lost,  it  was  held  that  the  plain 
tiff  was  not  entitled  to  recover.^  So,  where  a  parcel,  containing 
two  hundred  sovereigns,  was  enclosed  in  a  package  of  tea,  and 
paid  for  as  of  ordinary  value,  and  it  was  stolen;  it  was  held,  that 

1  Murphy  v.  Staton,  3  Munf.  239 ;  Bell  »  Whiteside  v.  Eussell,  8  W.  &  S.  44 
V.  Reed,  4  Binn.  127  ;  Ewart  v.  Street,  2  And  see  Slocumr.  Fairchild,  7  Hill  (N.  Y.) 
Bailey,  157.  [Proof  of  delivery  of  goods  Rep.  292.  [Where  goods  were  receiyed 
to  a  common  carrier,  and  of  a  demand  iind  onboard  a  steam-packet,  and  the  bill  of 
refusalof  the  goods,  or  of  such  loss  of  goods  lading  contained  an  exception  of  "rob- 
as  renders  a  demand  useless,  throws  the  bers,"  and  the  goods  were  stolen  without 
burden  of  proof  on  the  carrier  to  show  that  violence,  the  loss  was  held  not  to  be  within 
the  loss  of  goods  happened  by  causes  for  the  exception.  De  Rothschild  v.  Royal 
which  he  is  not  liable.  Alden  v.  Pearson,  Mail,  &c.  Co.,  14  Eng.  Law  &  Eq.  327. 
3  Gray,  342.  So  if  he  fails  to  deliver  Damage  by  rats  does  not  come  within  the 
goods  intrusted  to  him  within  a  reasonable  exception  of  "  dangers  of  the  sea  or  navi- 
time,  he  is  liable  for  the  damage  caused  by  gation."  Lavcroni  v.  Drury,  16  lb.  510, 
the  delay,  unless  he  shows  there  is  no  neg-  and  note.  The  responsibility  of  a  common 
ligence  on  his  part.  Nettles  v.  Railroad  carrier  lasts  until  that  of  some  other  party 
Co.,  7  Rich.  (S.  C.)  190.]  [*See2  Red-  begins,  and  he  must  show  an  actual,  or 
field  on  Railw.  7.  The  proprietors  of  a  legal  constructive  delivery  to  the  owner, 
railroad,  who  negligently  delay  the  trans-  or  consignee,  or  warehouseman  for  stor- 
portation  of  goods  delivered  to  tliem  as  age ;  and  the  burden  of  proof  is  on  the 
common  carriers,  and  then  transport  them  carrier  to  show,  by  some  open  act  of  deliv- 
safely  to  their  destination,  are  not  respon-  ery,  that  he  has  changed  his  liability  to 
Bible  for  injuries  to  the  goods  by  a  flood  that  of  warehouseman.  Chicago,  &c.  R. 
■while  in  their  depot  at  that  place,  although  R.  Co.  v.  "Warren,  16  111.  502  ;  The  Pcy- 
the  goods  would  not  have  been  exposed  to  tona,  2  Curtis,  C.  C.  21.] 

such  injury  but  for  the  delay.     Denny  i;,  *  Story  on  Bailm.  §§  563, 565,  566,  576; 

N.  Y.  Con.  R.  R.,  13  Gray,  481.]  Leech  v.  Baldwin,  5  Watts,  446  ;  [Clark 

2  &tvindler  v.  Hilliard,  2  Rich.  R.  286  ;  v.  Barnwell,  1 2  How.  U.  S.  272  ;  Rich  v 
[Hunt  V.  The  Cleveland,  6  McLean,  76  j  Lambert,  lb.  347.] 

The  Peytona,  2  Curtis,  C.  C.  21  ;  Bissel        ^  Edwards  v.  Sharratt,  1  East,  604. 
V.  Price"  16  111.  408.] 

VOL.  II.  18 


194 


LAW   OF  EVIDENCE. 


[part  IV. 


the  carrier  was  not  liable.^  And  where  the  plaintiff  being  a  bailee 
of  goods  to  be  booked  and  conveyed  by  the  coach  in  which  he  was 
a  passenger,  placed  them  in  his  own  bag,  which  was  lost,  it  was 
held  that  the  loss  was  not  chargeable  to  the  carrier,  but  was  im- 
putable to  the  plaintiff's  own  misfeasance.^  And  if  the  injury  is 
caused  partly  by  the  negligence  of  the  plaintiff,  and  partly  by  that 
of  the  defendant,  or  of  some  other  person,  it  seems  that  the  plain- 
tijBf  cannot  maintain  the  action  ;  unless,  perhaps,  in  case  where,  by 
ordinary  care,  he  could  not  have  avoided  the  consequence  of  the 
defendant's  negligence.^  The  question  of  unfair  or  improper  con- 
duct in  the  plaintiff,  in  these  cases,  is  left  to  the  determination  of 
the  jury.^ 

§  221.   Carriers  of  passengers  are  not  held  responsible  to  the 
same  extent  with  common  carriers,  except  in  regard  to  the  baggage.^ 


1  Bradley  v.  Waterhouse,  1  M.  &  Malk. 
154,  3  C.  &  P.  318,  S.  C.  See  also  Bull. 
N.  P.  71.  The  owner,  ordinarily,  is  not 
obliged  to  state  the  value  of  a  package, 
unless  inquiry  is  made  by  the  carrier;  but 
if,  being  asked,  he  deceives  the  carrier,  the 
latter,  though  a  common  carrier,  is  not  lia- 
ble without  his  own  default.  Phillips  v. 
Earle,  8  Pick.  182. 

2  Miles  V.  Cattle,  6  Bing.  743. 

8  Williams  V.  Holland,  6  C.  &  P.  23 ; 
Pluckwell  V.  Wilson,  5  C.  &  P.  37.'i ;  Haw- 
kins V.  Cooper,  8  C.  &  P.  473  ;  Davies  v. 
Mann,  10  M.  &  W.  546  ;  Smith  v.  Smith, 
2  Pick.  621  ;  White  v.  The  Winnissimmet 
Co.,  .5  Monthly  Law  Rep.  203 ;  [8  Cush. 
155;  Willoughby  v.  Horridge,  16  Eng. 
Law  &  Eq.  437.] 

*  Batson  v.  Donovan,  4  B.  &  Aid.  21. 
And  see  Mayheww.  Eames,  3  B.  &  C.  601, 
1  C.  &  P.  550.  S.  C. ;  Clay  v.  Willan,  1 
H.  Bl.  298  ;  Izett  v.  Mountain,  4  East, 
370.  [*  In  an  action  against  a  carrier  to 
whom  goods  have  been  intrusted,  for  not 
delivering  them  according  to  contract,  the 
measure  of  damages  is  the  value  of  the 
goods  at  the  place  of  delivery  and  at  the 
time  wlien  tliey  should  have  been  delivered, 
with  interest  from  that  time.  Spring  v. 
Haskell,  4  Allen,  112.] 

^  Whether  a  large  sum  of  money,  in  an 
ordinary  travelling  trunk,  will  be  consid- 
ered as  baggage,  beyond  an  ordinary 
amount  of  travelling  expenses,  qucere ;  and 
see  Orange  Co.  Bank  v.  Brown,  9  Wend. 
85.  In  a  later  ca,se  it  was  thought,  that 
the  term  "  baggage  "  does  not  include  even 
money  for  travelling  expenses ;  but  this 
was  not  the  point  in  judgment.  It  was 
trover  against  the  o  vner  of  a  steamboat, 
as  a  common  carrier  of  passengers,  for  the 


loss  of  one  of  the  plaintiff's  two  trunks, 
containing  samples  of  merchandise,  carried 
as  part  of  his  personal  baggage,  by  the 
plaintiff's  travelling  agent.  The  court 
held,  that  the  carrier  was  not  liable  on 
that  ground  ;  the  learned  judge  expressing 
himself  as  follows :  "  Although  I  do  not 
find  it  stated  in  the  case  that  Mason  (the 
agent)  paid  anything  to  the  boat-owner, 
either  for  freight  or  passage,  yet  the  whole 
argument  on  both  sides  went  upon  the 
ground  that  he  had  paid  the  usual  fare  of 
a  passenger,  and  nothing  more ;  that  he 
neither  paid,  nor  intended  to  pay,  anything 
for  the  trunk ;  but  designed  to  have  the 
same  pass  as  his  baggage.  It  ^^as  formerly 
held,  that  the  owner  of  the  boat  or  vehicle 
was  not  answerable  as  a  carrier  for  the 
luggage  of  the  passenger,  unless  a  distinct 
price  was  paid  for  it.  But  it  is  now  held, 
that  the  carr^nng  of  the  baggage  is  includ- 
ed in  the  principal  contract  in  relation  to 
tlie  passenger ;  and  the  carrier  is  answer- 
able for  the  loss  of  the  property,  although 
there  was  no  separate  agreement  coticern- 
ing  it.  A  contract  to  carry  the  ordinary 
luggage  of  the  passenger  is  implied  from 
the  usual  course  of  the  business  ;  and  the 
price  paid  for  fare  is  considered  as  includ- 
ing a  compensation  for  carrying  the  freight. 
But  this  implied  undertaking  has  never 
been  extended  beyond  ordinary  baggage, 
or  such  things  as  a  traveller  usually  car- 
ries with  him  for  his  personal  convenience 
in  the  journey.  It  neither  includes  money 
nor  merchandise.  Orange  Co.  Bank  v. 
Brown,  9  Wend.  85 ;  Pardee  v.  Drew,  25 
Wend.  459.  It  was  suggested  in  the  first 
case  that  money  to  pay  travelling  expenses 
might  perhaps  be  included.  But  that  may, 
I  think,  be  doubted.     Men  usually  carry 


PART  IV.]  ^  CARRIERS.  19i> 

But  they  are  bovmd  to  the  utmost   care  and   diligence   of  very 
cautious  persons ;  and  of  course  they  are  responsible  for  any,  even 

money  to  pay  travelling  expenses  about 
their  persons,  and  not  in  their  trunks  or 
boxes;  and   no  contract  can   be  implied 
beyond  such  things  as  are  usually  carried 
as  baggage.      It  is  going  for   enough   to 
imply  an  agreement  to  carry  freight  of  any 
kind,  from  a  contract  to  carry  the  passen- 
ger ;  for  the  agreement  which  is  implied  is 
much  more  onerous  than  the  one  which  is 
expi'essed.      The  carrier  is  only  answer- 
able for  an  injury  to  the  passenger,  where 
there  has  been  some  want  of  care  or  skill ; 
but  he  must  answer  for  the  loss  of  the 
goods,   though   it   happened   without  his 
fault.     Still  an  agreement  to  carry  ordina- 
ry baggage  may  well  be  implied  from  the 
usual  course  of  business;  but  the  impli- 
cation cannot  be  extended   a  single  step 
beyond  such  things  as  the  traveller  usually 
has  with  him  as  a  part  of  his  luggage.     It 
is  undoubtedly  difficult  to  define  with  accu- 
racy what  shall  be  deemed  baggage  with- 
in the  rule  of  the  carrier's  liability.     I  do 
not  intend  to  say  that  the  articles  must  be 
such  as  every  man  deems  essential  to  his 
comfort ;  for  some  men  carry  nothing,  or 
very  little  with  them  when "  they   travel, 
while  others  consult  their  convenience  by 
carrying  many  things.     Nor  do  I  intend 
to  say  that  the  rule  is  confined  to  wearing 
apparel,  brushes,  razors,  writing  apparatus, 
and  the  like,  which    most  persons   deem 
indispensable.     If  one  has   books  for  his 
instruction  or  amusement  by  the  way,  or 
carries  his  gun  or  fishing-tackle,  they  would 
undoubtedly  fall  within  the  term  baggage, 
because  they  are  usually  carried  as  such. 
This  is,  I  think,  a  good  test  for  determin- 
ing what  things  fall  within  the  rule. 

"  In  this  case,  the  plaintiff  sent  out  Ma- 
uon  as  his  '  traveller '  or  agent,  to  seek  pur- 
chasers for  his  goods,  and  the  trunk  in 
(question  contained  samples  of  the  mer- 
chandise which  he  wished  to  sell.  The 
samples  were  not  carried  for  the  personal 
use,  convenience,  instruction,  or  amuse- 
ment of  the  passenger  in  his  journey,  but 
for  the  purpose  of  enabling  him  to  make 
bargains  in  the  way  of  trade.  Although 
the  samples  were  not  themselves  to  be  sold, 
they  were  used  for  the  sole  purpose  of  car- 
rying on  trafSc  as  a  merchant.  They 
were  not  baggage,  within  the  common 
acceptation  of  the  term  ;  and  as  they  were 
not  shipped  or  carried  as  freight,  the  Judge 
was  right  in  holding  that  the  plaintiff 
could  not  recover."  Hawkins  v.  Hoffman, 
6  Hill's  (N.  Y.)  Rep.  586.  Sed  qiicere, 
whether  prudent  travellers  do  not  ordina- 
rily carry  part  of  their  necessary  funds  in 
the  trunk. 


In  regard  to  the  luggage  of  passengeis, 
it  is  held  that  the  carrier  is  bound  to  de- 
liver it  to  the  passenger  at  the  end  of  the 
journey,  though  it  may  be  in  the  same  car- 
riage with  the  passenger,  and  under  lus 
personal  care  ;  and  that  if  the  usual  course 
of  delivery  is  at  a  particular  spot,  that  is 
the  place  of  delivery.  Richards  v.  The 
London  and  S.  Coast  Railw.  Co.,  7  M.  G. 
&  S.  839.  It  is  sufficient  for  the  plaintiff 
to  prove  th.1t  the  luggage  was  in  the  car- 
riage, and  its  non-clelivery  at  the  end  of 
the  journey.  Ibid.  Crouch  v.  The  Lon- 
don and  N.  W.  Railw.  Co.,  2  C.  &  K.  789. 
[It  is  the  duty  of  a  railroad  corporation, 
that  receives  passengers  and  commences 
their  carriage  at  the  station  of  another 
road,  to  have  a  servant  there  to  take  charge 
of  baggage,  until  it  is  placed  in  their  cars ; 
and  if  it  is  the  custom  of  the  baggage- 
master  of  the  station,  in  the  absence  of 
such  seri-ant,  to  receive  and  take  charge 
of  baggage  in  his  stead,  the  proprietors 
will  be  responsible  for  baggage  so  delivered 
to  him.  Jordan  v.  Fall  River  R.  R.  Co., 
5  Cush.  69  ;  Butcher  v.  London  &  S.  W. 
R.  Co.,  29  Eng.  Law  &  Eq.  347. 

The  term  "  baggage  "  may  be  said,  in 
general  terms,  to  include  such  articles  as 
are  of  necessity  or  convenience  for  personal 
use,  and  such  as  it  is  usual  for  persons 
travelling  to  take  with  them.  It  has  been 
said  that  articles  for  instruction  or  amuse- 
ment, as  books,  or  a  gun,  or  fishing-tackle, 
fall  within  the  term  "  baggage."  Jordan 
V.  Fall  River  R.  R.  Co.,  5  Cush.  69.  The 
carrier  was  held  responsible  for  a  lady's 
trunk,  containing  apparel  and  jewelry. 
Brooke  v.  Pickwick,  4  Bing.  218;  M'Gill 
V.  Rowand,  3  Barr,  451  ;  for  a  watch  lost  in 
a  trunk,  Jones  v.  Voorhees,  10  Ohio,  145  ; 
and  for  money  bona  Jide  taken  for  travel- 
ling expenses  and  personal  use,  to  a  rea- 
sonable amount.  Weed  v.  Saratoga  &  S. 
R.  R.  Co.,  19  Wend.  534;  Jordan  v.  Fall 
River  R.  R.  Co.,  5  Cush.  69.  In  the  case 
in  19  Wendell,  the  defendant  was  held  lia- 
ble for  the  sum  of  $  285  in  the  trunk  of  a 
passenger  from  Saratoga  to  New  York.  In 
the  case  from  5  Cushing,  S  325  were  lost  in 
a  trunk,  and  the  verdict  being  for  the 
whole  sum,  and  as  there  had  been  in  the 
court  below  no  inquiry  and  no  finding  as 
to  the  uses  and  purposes  for  which  the 
money  was  designed,  the  verdict  was  set 
aside  and  a  new  trial  was  granted,  that 
such  inquiry  might  be  made.  A  common 
carrier  is  not  liable  for  articles  of  merchan- 
dise not  intended  for  personal  use  as  bag- 
gage. Collins  u.  Boston  &  M.  R.  R.,  10 
Cush.  506.    See  also  Orange  Co.  Bank  v. 


196 


LAW    OF   EVIDEXCK. 


[part  IV. 


the  slightest  neglect."'  Their  contract  to  carry  safely  means,  not 
that  they  will  insure  the  limbs  of  the  passengers,  but  that  they 
will  take  due  care,  as  far  as  competent  skill  and  human  foresight 
will  go,  in  the  performance  of  that  duty.^  This  extreme  care 
is  to  be  used  in  regard  to  the  original  construction  of  the  coach 
or  vehicle,  frequent  examination  to  see  that  it  is  safe,  the  em- 
ployment of  good  and  steady  horses  and  careful  drivers,  and  the 
use  of  all  the  ordinary  precautions  for  the  safety  of  passengers  on 
the  road.2  The  carrier  is  also  bound  to  give  them  notice  of  dan- 
ger, if  any  part  of  the  way  is  unsafe.*  Accordingly,  where  the  in 
jury  resulted  from  negligent  driving,^  insufficiency  of  the  vehicle,^ 
overloading  the  coach,'''  improper  stowage  of  the  luggage,^  drunk- 
enness of  the  driver,^  want  of  due  inspection  of  the  coach  previous 


Bro^vn  ;  Pardee  v.  Drew,  and  Hawkins  v. 
Hoffman,  ubi  supra;  Dibble  v.  Brown,  12 
Geo.  217;  Great  North  R.  Co.  v.  Shep- 
herd, 1 4  Eng.  Law  &  Eq.  367.]  [*  Finger- 
rings  have  also  been  regarded  as  wearing 
apparel.  McCormick  v.  Hudson  River 
Railw.,  4  E.  D.  Smith,  81.  But  a  dozen 
silver  teaspoons,  or  a  Colt's  pistol,  or  sur- 
gical instruments,  except  the  passenger  be 
connected  with  the  profession,  are  not 
properly  a  portion  of  travelling  baggage. 
GilP3  V.  Fauntleroy,  13  Md.  R.  126.  And 
title-deeds  and  documents,  which  an  attor- 
ney is  carrying  with  him  to  use  on  a  trial, 
are  not  luggage  ;  nor  is  a  considerable 
amount  of  bank-notes  carried  to  meet  the 
contingencies  or  exigencies  of  the  case. 
Phelps^v.  London  &  N.  W.  R.  Co.,  19  C.  B 
N.  S.  6.'52.  In  HI.  Cent.  Railw.  v.  Cope- 
land,  24  111.  R.  332,  it  is  held  a  reasonable 
amount  of  bank-bills  may  be  carried  in  a 
trunk,  and  their  value  recovered  as  lost 
baggage.  But  in  Hickox  v.  Naugatuck 
K.  R.  Co.,  31  Conn.  R.  281,  where  the 
passenger  had  in  his  trunk  sixty  dollars 
for  the  purpose  of  purchasing  clothing  at 
the  place  of  his  destination,  it  was  held  the 
carriers  were  not  liable  as  such,  for  any 
additional  damages  on  account  of  the  loss 
of  this  money.  See  2  Redfield  on  Rail- 
wars,  152-155.] 

1"  Storv  on  Bailm.  §§  601,  602 ;  2 
Kent,  Comm.  600;  [Farish  v.  Reigle,  11 
Gratt.  697  ;  Derwort  v.  Loomer,  21  Conn. 
245;  Fuller  v.  Naugatuck  R.  R.  Co.,  lb. 
557.]  [*A  ferry  company  being  com- 
mon carriers  of  passengers,  are  bound  to 
furnish  reasonably  safe  and  convenient 
means  for  the  ])assage  of  teams  from  their 
boats,  appropriate  to  the  nature  of  their 
business,  and  to  exercise  the  utmost  skill 
in  the  provision  and  application  of  the 
means  so  employed ;    but    they  are  not 


bound  to  adopt  and  use  a  new  and  im- 
proved method,  because  it  is  safer  or  bet- 
ter than  the  method  employed  by  them,  if 
it  is  not  requisite  to  the  reasonable  safety 
or  convenience  of  passengers,  and  if  the 
expense  is  excessive  ;  and  the  cost  of  such 
improved  method  may  be  a  sufficient  rea- 
son for  their  refusing  to  adopt  it.  Le 
Barron  v.  East  Boston  Ferry  Co.,  11  Allen, 
312.] 

2  Harris    v.    Costar,    1    C.    &  P.   636; 
Stokes  V.  Saltonstiill,  13  Peters,  181  ;  Sto- 
rv on  Bailm.  §§  601,  602. 
'  8  Story  on  Bailm.  §§  592,  593,  594,  598, 
599,  601,  602  (3d  edit.). 

*  Dudley  v.  Smith,  1  Campb.  167; 
Christie  v.  Griggs,  2  Campb.  79. 

5  Aston  V.  Heaven,  2  Esp.  533  ;  Crofts 
r.  Waterhouse,  3  Bing.  319.  If  the  driv- 
er, having  a  choice  of  two  ways,  elects 
the  most  hazardous,  the  owner  is  respon- 
sible at  all  events  for  any  damage  that 
ensues.  Mayhew  v.  Boyce,  1  Stark.  R. 
423.  [*  "  The  preponderance  of  authority 
certainly  proves  that  in  cases  of  injury  to 
a  third  person  arising  from  the  mutual 
negligence  of  colliding  carriages,  trains, 
boats,  or  vessels,  the  carrier  vehicle,  by 
which  I  mean  that  on  which  the  injured 
party  is,  must  answer  for  the  injury." 
Thompson,  J.,  Lockhart  v.  Li tchtcn thaler, 
46  Penn.  St.  159.  The  cases  are  fully 
cited  and  reviewed  in  the  opinion  in  this 
case.] 

8  Christie  xi.  Griggs,  2  Campb.  79  ; 
Bremner  v.  Williams,  1  C.  &  P.  414; 
Sharp  V.  Grey,  9  Bing.  457  ;  "Ware  v.  Gay, 
11  Pick.  106  ;  Camden  &  A niboy  Railroad 
Co.  V.  Burke,  13  Wend.  611;  Cui-tis  v. 
Drinkwater,  2  B.  &  Ad.  169. 

T  Israel  v.  Clark,  4  Esp.  259. 

8  Curtis  V.  Drinkwater,  2  B.  &  Ad.  169 

*  Stokes  17.  Saltonstall,  13  Peters,  181. 


PART  IV.] 


CARRIERS. 


197 


to  the  journey,  or  upon  the  road,i  or  the  like,  the  proprietor  has 
been  held  liable.  He  is  also  liable  for  an  injury  occasioned  by  leap- 
ing from  the  coach,  where  the  passenger  was  justly  alarmed  for 
his  safety,  by  reason  of  something  imputable  to  the  proprietor.^ 

§  222.  It  is  only  on  the  ground  of  negligence,  that  the  carrier 
of  passengers  is  held  liable.  This  is  therefore  a  material  point  for 
the  plaintiff  to  make  out  in  evidence,  and  without  which  he  can- 
not recover.  He  must  also  prove  the  defendant's  engagement  to 
carry  him,  and  that  he  accordingly  took  his  place  in  the  vehicle.^ 


^  Sharp  V.  Grey,  9  Bing.  457  ;  Bremner 
V.  Williams,  1  C.  &  P.  414  ;  Ware  v.  Gay, 
II  Pick.  106. 

2  Jones  V.  Boyce,  1  Stark.  R.  493 ; 
Stokes  V.  Saltonstall,  13  Peters,  181.  The 
following  count  in  assumpsit  against  a  pas- 
senger-carrier, for  bad  management  of  a 
sufficient  coach,  it  is  conceived  would  be 
good. 

"  For  that  the  said  (defendant)  on 

was  the  proprietor  of  a  coach  for  the  car- 
riage of  passengers  with  their  luggage 
between and ,  for  hire  and  re- 
ward ;  and  thereupon,  on  the  same  day, 
in  consideration  that  the  plaintiff,  at  the 
request  of  the  said  {dfft 7idu nt),  \vou\d  en- 
gage and  take  a  seat  and  place  in  said 
coach,  to  be  conveyed  therein  from  said 
to for  a  reasona[)le  hire  and  re- 
ward to  be  paid  to  him  by  the  plaintiff,  the 
said  {defendant)  undertook  and  promised 
the  plaintiff  to  carry  and  convey  him  in 

said  coach,  from to ,  with  all  due 

care,  diligence,  and  skill.  (*)  And  the 
plaintiff  avers  that,  confiding  in  the  said 
undertaking,  he  thereupon  engaged  and 
took  a  seat  in  said  coach  and  became  a 
passenger  therein,  to  be  conveyed  as  afore- 
said, for  such  hire  and  reward  to  be  paid 
by  him  to  the  said  (defendant).  But  the 
said  (defendant)  did  not  use  due  care,  dili- 
gence, and  skill,  in  carrying  and  convey- 
ing the  plaintiff  as  aforesaid  ;  but  on  the 
contrary  so  overloaded,  and  so  negligently 
and  unskilfully  conducted,  drove,  and 
managed  said  coach,  that  it  was  over- 
turned ;  by  means  whereof  the  plaintiff 
was  grievously  bruised  and  hurt,  [here 
state  any  other  special  injuries,]  and  was  sick 
and  disabled  for  a  long  time,  and  was  put 
to  great  expense  for  nursing,  medicines, 
and  medical  aid." 

If  the  injury  arose  from  insufficiency  in 
the  coach,  or  horses,  insert  at  (*)  as  fol- 
lows :  "  and  that  the  said  coach  was  suffi- 
cientlj  stanch  and  strong,  and  that  the 
horses  drawing  the  same  were  and  should 
be  well  broken,  and  manageable,  and  of 
competent  strength  "  ;  —  and  assign  the 
breach  accordinijly. 


^  [*The  plaintiff  showed  that  she  pur- 
chased a  ticket  for  herself  and  her  baggage 
from  one  who  purported  to  be  an  agent  of 
the  road  for  the  sale  of  tickets,  that  the 
conductors  accepted  it  as  evidence  of  her 
right  to  ride  in  the  cars,  marked  it,  and 
finally  took  it  shortly  before  arrival,  and 
demanded  no  other  fare  from  her.     Held, 
that  these  facts  offered  sufficient  proof  of 
an  undertaking  on  the  part  of  the  company 
to  transport  her  and  her  baggage  over  the 
road,  and  the  acts  of  the  company's  con- 
ductors were  sufficient  ground  for  the  law 
to  presume  that   the  undertaking  of  the 
agent   was   valid   and   binding  upon   the 
company    until    the    contrary   appeared. 
Glosco  V.  N.  Y.  &c.  Raihv.,  36  Barb.  557.] 
[Where  a  railroad  company  receives  upon 
its  track  the  cars  of  another  company,  places 
them  under  the  control  of  its  agents  and  ser- 
vants, and  draws  them  by  its  own  locomo- 
tive over  its  own  road,  to  their  place  of 
destination,  it  assumes  towards  the  passen- 
gers coming  upon  its  road  in  such  cars  the 
relation  of  common  carriers  of  passengers, 
and  all  the  liabilities  incident  to  that  rela- 
tion ;  and  this  is  so  whether  such  passen- 
gers  purchase  their  tickets  at  one  of  the 
company's  stations,  or  at  a  station  of  a 
contiguous  railroad,  or  of  any  other  author- 
ized agent  of  the  company.     Schopman  v. 
Boston  and   W.   R.   R.  Co.,  9   Gush.  24. 
And  as  such  passenger-carrier,  the  railroad 
company  is  bound  to  the  most  exact  care 
and  diligence  in  the  management  of  the 
trains  and  cars,  in  the  structure  and  care  of 
the  track,  and  in  all  the  subsidiary  arrange- 
ments  necessary  to  the  safety  of  the  pas- 
sengers,   lb.  McElroy  v.  Nashua,  &c.  R.  R. 
Co.,  4  Gush.   400 ;  Curtiss   v.  Rochester, 
&c.  R.  R.  Co.,  20  Barb.  282 ;  Galena,  &c. 
R.  R.  Co.  V.  Fay,  16  EL  558.     [*In  Ga- 
lena &  Chicago  Railw.  v.  Yarvvood,  17  111. 
R.  509,  it  is  held,  that  a  passenger  in  a 
railway  car  need  only  show  that  he  has 
received  an  injury  to  make  a  prima  facie 
case  against  the  carrier  ;  the  carrier  must 
rebut  the  presumption  in  order  to  exoner- 
ate himself.     But  in  Curtis  v.  Rochester 
&  Sy.  Railw.,  18  N.  Y.  Ct.  app.  534.  it  is 


198  LAW  OF   EVIDENCE.  [PART  IV 

But  where  the  injury  resulted  from  the  breaking  of  the  harness, 
or  the  breaking  or  overturning  of  the  coach  or  car,  or  any  other 
accident,  occurring  on  the  road,  while  the  vehicle  or  machinery 
and  railway  were  in  the  hands  and  exclusive  management  of  the 
defendants  or  their  agents,^  this  is  itself  presumptive  evidence  of 
negligence,  and   the  onus  prohandi  is  on  the  proprietor  of  the 
vehicle  to  establish  that  there  has  been  no  negligence  whatever, 
and  that  the  damage  has  resulted  from  a  cause  which  human  care 
and  foresight  could  not  prevent.^     Where  the  breaking  down  of 
the  carriage  was   occasioned   by  an  original  defect  in  the  iron 
axle,  which,  though  concealed  by  the  wooden  part  of  the  axle, 
might  have  been  discovered  by  unscrewing  and  separating  them, 
the  proprietor  has  been  held  chargeable  with  negligence,  in  not 
causing  such  examination  to  be  made,  previously  to  any  use  of 
the  vehicle.^    But  that  he  is  liable  for  such  an  accident,  where 
the  fracture  was  caused  by  an  original   internal  defect  in  the 
forging  of  the  bar,  undiscoverable  by  the  closest  inspection,  and 
unavoidable  by  human  care,  skill,  and  foresiglit,  is  a  point  which 
no  decision  has   yet   sustained.      On  the  contrary,  in  a  recent 
action  to  recover  damages  occasioned  by  precisely  such  a  defect, 
where  the  defendant  moved  the  court  below  to  instruct  the  jury 
that  if  he  had  used  all  possible  care,  and  the  accident  happened 
without  any  fault  on  his  part,  but  by  reason  of  a  defect  which  he 
qould  not  discover,  the  plaintiff  was  not  entitled  to  recover,  but 
*"he  court  refused  to  do  so,  and  instructed  the  jury  that  the  defend- 
ant was  answerable  at  all  events ;  it  was  held  by  the  court  above, 

said  that  no  ;5nma/ac?e  presumption  of  neg-  on  a  special  contract  to  carry  him  safely 

ligence  in  the  carrier  results  from  the  injury  by  railroad  and  stage,  and  it  was  held  that 

merely,  but  only  when  it  appears  that  it  re-  the  action  could  not  be  maitained.     Hood 

suited  from  some  defect  in  the  road  or  equip-  v.  New  Haven,  &c.  R.  R.  Co.,  22  Conn.  1.] 
ment.  The  foct  of  an  animal  being  upon  the         ^  Carpue  y.  London  Railw.   Co.,  5  Ad 

track  is  prima  facie  evidence  of  negligence  &  El.  747,  N.  S. 

in  the  company,  they  being  bound  as  be-  ^  Story  on  Bailm.  §§  601  a,  602  ;  Mc 
tween'  themselves  and  their  passengers  to  Kinney  v.  Neil,  1  McLean,  R.  540 ;  Chris- 
keep  the  road  free  from  all  obstructions  of  tie  v.  Griggs,  2  Campb.  79 ;  Ware  v.  Gay, 
that  character.  Sullivan  v.  Philadelphia  11  Pick.  106;  Skinner  v.  The  London, 
&  Reading  Raihv.,  30  Penn.  St.  234.]  &c.    Railway    Co.,  4  Am.  Law  Rep.    83, 

The   defendants   ran  cars  from  A  to  B,  N.  S. 
and  advertised  that  on  the  arrival  of  the         ^  Sharp  u.  Grey,  9  Bing.  457  ;  [Hege- 

cars  at  B,  stages  would  leave  for  C.     The  man  v.  Western  R.  R.,  3  Kernan  (N.  Y.), 

plaintiff  bought  of  the  defendants  a  ticket  9.]     [*  See  Alden  v.  N.  Y.  Cent.  Railw., 

for  the  fare  to  B.     Arriving  at  B,  he  took  2G  N.  Y.    102,  where  the  company  were 

the  stage   for   C  and  received  an   injury  held  liable  for  an  injury  resulting  Irora  a 

while  going  in   the  stage  from  B  to  C.  crack  in  the  axle  of  a  car,  undiscovera- 

The   defendants   did  not  own  or  control  ble  by  any  practicable  mode  of  examina- 

the  stage,  nor  participate  in  the  profits  of  tion.     See  Caldwell  u.   Murphy,  1  Duer, 

its  use.     The  plaintiti"  brought  an  action  241.1 


PART  IV.]  CARRIERS.  199 

that  this  instruction  was  erroneous,  the  law  being  stated,  in  con- 
clusion, in  these  words :  "  The  result  to  which  we  have  arrived, 
from  the  examination  of  the  case  before  us,  is  this :  That  carriers 
of  passengers  for  hire  are  bound  to  use  the  utmost  care  and  dili- 
gence in  the  providing  of  safe,  sufficient,  and  suitable  coaches, 
harnesses,  horses,  and  coachmen,  in  order  to  prevent  those  injuries 
which  human  care  and  foresight  can  guard  against ;  and  that  if  an 
accident  happens  from  a  defect  in  the  coach,  which  might  have 
been  discovered  and  remedied  upon  the  most  careful  and  thor- 
ough examination  of  the  coach,  such  accident  must  be  ascribed 
to  negligence,  for  which  the  owner  is  liable  in  case  of  injury  to 
a  passenger  happening  by  reason  of  such  accident.  On  the  other 
hand,  where  the  accident  arises  from  a  hidden  and  internal  de- 
fect, which  a  careful  and  thorough  examination  would  not  dis- 
close, and  which  could  not  be  guarded  against  by  the  exercise 
of  a  sound  judgment  and  the  most  vigilant  oversight,  then  the 
proprietor  is  not  liable  for  the  injury,  but  the  misfortune  must  be 
borne  by  the  sufferer,  as  one  of  that  class  of  injuries  for  which  the 
law  can  afford  no  redress  in  the  form  of  a  pecuniary  recompense. 
And  we  are  of  opinion  that  the  instructions,  which  the  defendants' 
counsel  requested  might  be  given  to  the  jury  in  the  present  case, 
were  correct  in  point  of  law,  and  that  the  learned  judge  erred  in 
extending  the  liability  of  the  defendants  further  than  was  pro- 
posed in  the  instructions  requested."  ^ 

§  222  a.  Where  the  action  is  against  a  common  carrier  of 
passengers,  for  refusing  to  receive  and  convey  the  plaintiff,  the 
carrier  may  prove,  as  a  good  defence,  that  the  plaintiff  was  a 
person  of  bad  or  doubtful  character,  or  of  bad  habits ;  or,  that 
his  object  was  to  interfere  with  the  defendant's  interests,  or  to 
disturb  his  line  of  patronage ;  or,  that  he  refused  to  obey  the  rea- 
sonable regulations  made  for  the  government  of  passengers  in 
that  line  or  mode  of  conveyance.  And  such  carrier  may  right- 
fully inquire  into  the  habits  or  motives  of  persons  who  offer 
themselves  as  passengers. ^  But  if  the  plaintiff  has  been  received 
as  a  passenger  and  conveyed  a  part  of  the  way,  it  seems  he  can- 
not be  turned  out  on  the  ground  that  he  is  not  a  person  of 
good  character,  so  long  as  he  was  not  guilty  of  any  impropriety 
during  the  passage.^ 

1  Ingalls  V.  Bills,  9  Met.  1,  15.  8  Coppin  v.  Braithwaite,   8  Jur.   875. 

2  Jenks  V.  Coleman,  2  Sumn.  221.  [*See  Nolton  v.  The  "Westera  Railw.,  15 


200 


LAW   OF   EVIDENCE. 


[part  IV 


N.  Y.  Court  of  Appeals,  444,  where  it  is 
held,  that,  where  a  railway  voluntarily  un- 
dertakes to  convey  a  passenger  upon  their 
road,  whether  with  or  without  compensa- 
tion, if  such  passenger  be  injured  by  the 
culpable  negligence  or  want  of  skill  of  the 
agents  of  the  company,  they  are  liable  in 
the  absence  of  an  express  contract  exempt- 


ing them.  The  point  of  the  degree  of  care 
requisite  in  such  cases  is  here  discussed, 
but  not  decided.  The  argument  is  in  fa- 
vor of  the  rule  that  the  care,  diligence, 
and  skill  required  in  any  particular  busi- 
ness is  determined  by  the  ditticulty  and 
peril  of  the  business,  rather  than  by  the 
consideration  of  the  undertaking.] 


PART  IV.]  CASK  201 


CASE. 

|_*  §  223.  Only  the  general  principles  applicable  to  this  action  here  treated  ot. 

224.  Trespass  m  et  armis  and  trespass  on  the  case  distinguished  and  defined. 

225.  For  injuries  to  relative  rights,  case  is  proper  remedy. 

226.  For  injuries  to  absolute  rights,  whether  party  may  waive  force  and  sue  in  case 

is  not  settled.     Cases  discussed. 

227.  Several  plaintiffs  must  prove  joint  cause  of  action. 

228.  If  action  is  founded  in  tort,   not   necessary  to  prove    all  the  defendants 

guilty. 

229.  Particular  day  of  trespass  not  material.    Pleading  as  to  time  of  commission 

of  trespass. 

230.  Proof  of  loss,  presumptive  evidence  of  negligence  on  part  of  carrier  or  inn- 

keeper. 

230  a.  Where  action  is  brought  for  misrepresentation  of  a  fact  by  defendant,  plain- 
tiff must  prove  that  it  was  made  without  probable  cause. 

230  6.  In  action  for  injury  to  land,  possession  of  the  property  sufficient  against 
a  stranger. 

231.  Under  ^eHeraZ  issue,  defendant  may  prove  matters  expost  facto.    Other  defences. 

232.  Certain  defences  which  must  be  specially  pleaded. 

232  a.  That  the  injury  might  have  been  avoided  by  due  care  on  the  part  of  the  plain- 
tiff, a  defence. 

232  h.  Where  injury  occurs  from  act  of  person  in  defendant's  employ,  question  is 
whether  that  person  was  sub-contractor  or  not.] 

§  223.  Under  this  head  it  is  proposed  only  to  mention  some 
general  principles  of  evidence,  applicable  to  the  action  of  Trespass 
on  the  Case,  in  any  of  its  forms  ;  referring  to  the  appropriate  titles 
of  Adultery,  Carriers,  Libel,  Malicious  Prosecution,  Nuisance, 
Trespass,  Trover,  &c.,  for  the  particular  rules  relating  to  each 
of  these  heads. 

§  224.  The  distinction  between  the  actions  of  trespass  vi  et 
armis,  and  trespass  on  the  case,  is  clear,  though  somewhat  re- 
fined and  subtle.  By  the  former,  redress  is  sought  for  an  injury 
accompanied  with  actual  force  ;  by  the  latter,  it  is  sought  for 
a  wrong  without  force.  The  criterion  of  trespass  vi  et  armis,  is 
force  directly  applied,  or  vis  proxima.  If  the  proximate  cause 
of  the  injury  is  but  a  continuation  of  the  original  force,  or  vis 
impressa,  the  effect  is  immediate,  and  the  appropriate  remedy  is 


202  LAW   OF  FVTOENCE.  [PART  IV. 

trespass  vi  et  armis.  But  if  the  original  force,  or  vis  impressa,  had 
ceased  to  act,  before  the  injury  commenced,  the  effect  is  mediate, 
and  the  appropriate  remedy  is  trespass  on  the  case.  Thus,  if  a 
log,  thrown  over  a  fence,  were  to  fall  on  a  person  in  the  street,  he 
might  sue  in  trespass ;  but  if,  after  it  had  fallen  to  the  ground, 
it  caused  him  to  stumble  and  fall,  the  remedy  could  be  only 
by  trespass  on  the  case.^  The  intent  of  the  wrongdoer  is  not 
material  to  the  form  of  the  action ;  neither  is  it  generally  im- 
portant, whether  the  original  act  was  or  was  not  legal.  Thus, 
though  the  act  of  sending  up  a  balloon  was  legal,  yet  trespass 
vi  et  armis  was  held  maintainable,  for  damage  done  by  the 
accidental  alighting  of  the  balloon  in  the  plaintiff's  garden.^ 

§  225.  For  injuries  to  relative  rights,  the  action  on  the  case 
is  the  appropriate  remedy.  If  the  injury  was  without  force,  as, 
for  example,  enticing  away  a  servant,  case  is  the  only  proper 
remedy ;  but  if  it  be  done  with  force,  such  as  the  battery  of  one's 
servant,  or  the  like,  the  action  may  be  in  case,  or  in  trespass  vi 
et  armis,  at  the  plaintiff's  election  ;  and  in  the  latter  form,  he  may 
join  a  coimt  for  a  battery  of  himself.^ 

§  226.  Where  the  injury  is  not  to  relative,  but  to  absolute  rights, 
the  question,  whether  the  party  may  waive  the  force,  and  sue  in 
trespass  on  the  case,  for  the  mere  consequential  damages,  has 
been  much  discussed,  with  no  little  conflict  of  opinion.  Where 
the  tortious  act  was  done  to  the  property  of  the  plaintiff,  and  the 
defendant  has  derived  a  direct  pecuniary  benefit  therefrom,  as, 
if  he  seized  the  plaintiff's  goods  and  sold  them  as  his  own,  it 
is  clear  that  the  plaintiff  may  waive  tlie  tort  entirely,  and  sue  in 
assumpsit  for  the  price  of  the  goods.  So,  though  the  property  was 
forcibly  taken,  the  force  may  be  waived,  and  trover,  which  is  an 
action  on  the  case,  may  be  sustained,  for  the  value  of  the  goods. 
It  is  also  agreed,  that,  where  an  injury  was  caused  by  the  negli- 
gence of  the  defendant,  but  not  wilfully,  as  by  driving  his  cart 

1  Chitty  on  Plead.  115-120;  Smith  v.  men t  of  a  servant,  a  rational  agent.  The 
Ruthford,  2  S.  &  R.  358.  [*  See  Cod-  ap;ent's  direct  act  or  trespass  is  not  the 
man  V.  Evans,  7  Allen,  433,  and  Murphy  r.  direct  act  of  the  master.  Each  blow  of 
N.  y.  &  N.  H.  R.  R.  Co.,  30  Conn.  187.]  the  whip,  whether  skilful   and  careful  or 

2  Guille  V.  Swan,  19  Johns.  381.  [Where  not,  is  not  the  blow  of  the  master,  it  is  thb 
the  act  is  that  of  the  servant  in  perfoi'm-  voluntary  act  of  the  servant.  Sharrod  v. 
ing  his  duty  to  his  master,  case  is  the  only  The  London,  &c.  R.  Co.,  4  Eng.  Law  and 
remedy  against  the  master,  and  is   only  Eq.  401.] 

maintainable  when  the  act  is  negligent  or  ^  Chitty    on    Plead.    128,    [153],     181, 

improper;  and  this  rule  applies  to  all  cases  [229] ;  Ditcham  v.  Bond,  2.  M.  &  S.  436  ; 

where  the  carriage  or  cattle  of  a  master  are  Woodward  v.  Walton,  3  New  Rep.  476. 
placed  in  the  care  and  under  the  manage- 


PART  IV.]  CASE.  203 

against  the  plaintiff's  carriage,  trespass  on  the  case  may  be  main- 
tained, notwithstanding  the  injury  was  occasioned  by  force,  di- 
rectly applied,^  And  it  has  also  been  laid  down,  upon  considera- 
tion, as  a  general  principle,  that  where  an  injuiy  has  been  done, 
partly  by  an  act  of  trespass,  and  partly  by  that  which  is  not  an 
act  of  trespass,  but  the  proper  subject  of  an  action  on  the  case,  both 
acts  being  done  at  the  same  time,  and  causing  a  common  injury, 
the  party  may  sue  in  either  form  of  action,  at  his  election.  This 
rule  has  been  illustrated  by  the  case  of  a  weir,  or  dam,  erected 
partly  on  the  plaintiff's  ground,  and  partly  on  that  of  another 
riparian  proprietor.'-^  It  has  also  been  held,  that  case  would  lie 
for  a  distress,  illegally  made,  after  tender  of  the  rent  due;^  and 
for  a  tortious  taking,  under  pretence  of  a  distress  for  rent,  where 
there  was  no  right  to  distrain.*  In  this  last  case,  Lord  Denman, 
0.  J.,  proceeded  upon  the  general  ground,  that,  though  the  taking 
of  the  goods  was  a  trespass,  the  owner  was  at  liberty  to  waive  it, 
and  bring  case  for  the  consequential  injury  arising  from  the 
unlawful  detention.  Indeed,  it  is  difficult  to  discern  any  reason 
why  the  party  may  not,  in  all  cases,  waive  his  claim  to  vindictive 
damages,  and  proceed  in  case,  for  those  only  actually  sustained  ; 
or  why  he  may  not  as  well  waive  his  claim  for  a  part  of  the 
injury,  and  go  for  the  residue,  as  to  forgive  the  whole.^  There 
are,  however,  several  decisions,  both  English  and  American  to  the 
effect  that,  where  the  injury  is  caused  by  force,  directly  applied, 
the  remedy  can  be  pursued  only  in  trespass.^ 

§  227.   In  this  action,  as  in  others,  if  there  are  several  plaintiffs, 

^  Williams  v.  Holland,  10  Bing.  112;  Pitts  v.  Gaince,  1  Salk.  10 ;  Chamberlain  w. 
Jrtogers  V.  Imbleton,  3  New  Rep.  117;  Hazlewood,  5  M.  &  W.  515,  3  Jur.  1079 ; 
Moreton  v.  Hardcrn,  4  B.  &  C.  223  ;  Muskett  v.  Hill,  5  Bing.  N.  C.  694  ;  Par- 
Blin  V.  Campbell,  14  Johns.  432 ;  McAt-  ker  v.  Elliot,  6  Munf.  587  ;  Van  Horn  v. 
lister  V.  Hammond,  6  Cow.  342  ;  Dalton  v.  Freeman,  1  Halst.  322  ;  Haney  v.  Towns- 
Favour,  3  N.  Hamp.  465.  [*  An  action  on  end,  1  McCord,  207  ;  Ream  v.  Rank,  3  S. 
the  case  is  an  appropriate  remedy  for  inju-  &  R.  215;  Parker  v.  Bailey,  4  D.  &  R. 
ries  caused  by  the  wrongful  acts  of  the  215  ;  Moran  v.  Dawes,  4  Cowen,  R.  412. 
servants  of  defendants,  even  though  such  ^  These  decisions  are  referred  lo  in  1 
acts  were  acts  of  force,  and  such  that  tres-  Met.  &  Perk.  Dig.  pp.  69,  70  ;  1  Karri- 
pass  would  have  been  the  only  proper  son's  Dig.  42-47.  But  in  some  of  the 
remedy  against  the  servant.  Havens  v.  United  States,  the  distinction  between  the 
Hartford  &  N.  H.  R.  Co.,  28  Conn.  69.]  two  forms  of  action  has  been  abolished  by 

2  Wells  V.  Ody,  1  M.  &  W.  459,  per  Ld.  statute.  Thus,  in  Maine  it  is  enacted,  "  that 

Abinger  ;  Id.  462,  per  Parke,  B.  ;  Moore  the  declaration  shall  be  equally  good  and 

V.  Robinson,  2  B.  &  Ad.  817  ;   Knott  v.  valid,  to  all  intents  and  purposes,  whether 

Digges,  6  H.  &  J.  230.  the  same  shall  be  in  form  a  declaration  in 

^  Branscom  v.  Bridges,  1  B.  &  C.  145;  trespass,  or  trespass  on  the  case."    Rev. 

3  Stark.  R.  171 ;  Holland  v.  Bird,  10  Bing,  St.  ch.  115,  §  13.     So,  in  effect,  in  Indi- 

15.  ana.     Hines  v.   Kinnison,    8  Blackf.  119. 

*  Smith  V.  Goodmn,  4  B.  &  Ad.  413.  And  in  Connecticut,  Rev.  St.  1849,  tit,  1, 

*  See  Scott  i;.  Sheppard,  2  W.  Bl.  89  7 ;  §  274 :  Iowa,  Rev.  Stat.  1851,  §  1733 


204  LAW   OF  EVIDENCE.  [PART  IV 

they  must  prove  a  joint  cause  of  action,  such  as  damage  to  their 
joint  property,  slander  of  both  in  their  joint  trade  or  employment, 
and  the  like,  or  they  will  be  nonsuited.^  If  their  interests  are 
several,  but  the  damage  is  joint,  it  has  been  held  sufficient.^ 

§  228.  If  the  action  is  founded  in  tort,  it  is  not  necessary 
to  prove  all  the  defendants  guilty ;  for  as  torts  are  several  in 
their  nature,  judgment  may  well  be  rendered  against  one  alone, 
and  the  others  acquitted.^  But  if  the  action  is  founded  on  a 
breach  of  an  express  contract,  it  seems  that  the  plaintiff  must 
prove  the  contract  against  all  the  defendants.'* 

§  229.  The  particular  day  on  which  the  injury  is  alleged  to 
have  been  committed,  is  not  material  to  be  proved.  Originally, 
every  declaration  in  trespass  seems  to  have  been  confined  to  a 
single  act  of  trespass ;  and  if  it  was  continuous  in  its  nature, 
it  might  be  so  laid ;  in  which  case  it  was  considered  as  one  act 
of  trespass.  Subsequently,  to  save  the  inconvenience  of  distinct 
counts  for  each  tortious  act,  the  plaintiff  was  permitted  to  con- 
solidate into  one  count  the  charge  of  trespasses  done  on  divers 
days  between  two  days  specifically  mentioned ;  in  which  case 
it  is  considered  as  if  it  were  a  distinct  count  for  every  different 
trespass.  In  the  proof  of  such  a  declaration,  the  plaintiff"  may 
give  evidence  of  any  number  of  trespasses  within  the  time  speci- 
fied. But  he  is  not  obliged  to  avail  himself  of  this  privilege ; 
for  he  may  still  consider  his  declaration  as  containing  only  one 
count,  and  for  a  single  trespass.  When  it  is  considered  in  this 
light,  the  time  is  immaterial ;  and  he  may  prove  a  trespass  done  at 
any  time  before  the  commencement  of  the  action,  and  within  the 
time  prescribed  by  the  statute  of  limitations.  But  the  plaintiff"  is 
not  permitted  to  avail  himself  of  the  declaration  in  both  these 
forms  at  the  same  time.  He  is  therefore  bound  to  make  his 
election,  before  he  begins  to  introduce  his  evidence ;  and  will  not 
be  permitted  to  give  evidence  of  one  or  more  trespasses  within  the 
time  alleged,  and  of  another  at  another  time.^ 

1  Cook  V.  Batchellor,  2  B.  &  P.  150,  2     wrongdoers.     Wright  and  Cole,  JJ.,  dis 
Saund.    116   a  note,    (2);    Solomons   v.     senting.] 

Medex,  1  Stark.  R.  191.  *  Ireland  u.  Johnson,  1  Bing.  N.  C.  162, 

2  Coryton  v.  Lithebye,  2   Saund.  115;     Bretherton  v.  Wood,  3  B.  &  B.  54;  Max 
Weller  v.  Baker,  2  Wills.  414.  v.  Roberts,  12  East,  89 ;  supra,  §  214. 

8  [*In  Turner   v.   Hitchcock,  20  Iowa,  ^  Pierce  v.  Pickins,  16  Mass.  472,  per 

310,  it  is  held  that  where  the  plaintiff  in  an  Jackson,    J.;    Brook    v.   Bishop,   2    Ld. 

action  of  trespass  intermarries  with  one  of  Raym.  823,    7    Mod.    152,    2    Salk.   639; 

the  joint  trespassers  after  the  trespass   is  Monckton  v.  Pashley,  2  Ld.  Raym.  974, 

committed,  it  operates  to  discharge  all  the  976;  Hume  v.  Oldacre,  1   Stark.  R.  351, 


PART  IV.]  CASE.  205 

§  230.  If  the  plaintiff  charges  both  malice  and  negligence  upon 
the  defendant,  in  doing  the  act  complained  of,  the  count  will  be 
supported  by  evidence  of  the  negligence  onlt/}  And  where  the 
action  is  against  a  carrier,  or  an  innkeeper,  for  the  negligent  keep- 
ing of  the  goods  in  his  care,  whereby  they  were  lost ;  proof  of  the 
loss  affords  presumptive  evidence  of  negligence  on  the  part  of  the 
carrier  or  innkeeper  or  his  servants.^  So,  where  the  action  is 
against  a  railway  corporation,  for  the  destruction  of  property  by 
sparks  emitted  from  their  engine,  the  fact  of  the  premises  having 
been  fired  by  sparks  from  the  passing  engine  \s  prima  facie  q\\- 
dence  of  negligence  on  the  part  of  the  company.^ 

§  230  a.  Where  the  damage  for  which  the  action  is  brought 
has  resulted  from  the  misrepresentation  of  a  fact  by  the  defendant, 
it  is  necessary  to  prove  not  only  that  the  statement  was  false  in 
fact,  but  that  it  was  made  fraudulently,  or  without  probable 
cause ;  for  if  it  was  not  known  to  be  false  by  the  party  making  it, 
but  on  the  contrary  was  made  honestly,  and  in  full  belief  that 
it  was  true,  he  is  not  liable  at  law.  Thus,  where  the  allegation 
was,  that  the  defendant  falsely  represented  to  the  sheriff,  that  one 
J.  W.,  then  in  custody,  was  the  same  J.  W.  against  whom  the 
sheriff  (plaintiff)  had  another  process  ;  it  was  held  a  good  defence, 
that  the  defendant  believed,  upon  good  and  probable  grounds,  that 
the  representation  was  true.*  So,  if  an  agent  assume  to  act  as 
such  after  the  death  of  his  principal,  but  in  justifiable  ignorance 
of  that  fact,  he  is  not  liable  for  such  misrepresentation  of  his 
agency.^ 

1  Sannd.  24,  note  (1)  by  Williams.     See  El.  804,  820,  N.  S.     If  the  partr  who  made 

post,  §  624.  "  the  representation  knew  it  at  "the  time  to 

1  Panton  v.  Holland,  17  Johns.  92.  be  untrue,  this  is  sufficient  evidence  to 
[Where  the  declaration  charges  that  the  sustain  the  allegation  of  fraud  and  deceit, 
defendant  wrongfully  kept  a  horse  accus-  though  he  did  not  intend  actually  to  de- 
tomed  to  bite  mankind,  and  that  the  de-  fraud  or  injure  the  other.  "Watson  v. 
fendant  knew  it,  it  need  not  aver  that  the  Poulson,  15  Jnr.  1111.  And  see  Folhill 
injury  complained  of  was  received  through  r.  Walter.  3  B.  &  Ad.  113.  But  in  the 
the  defendant's  negligence  in  keeping  the  sale  of  real  estate,  if  the  vendor  make  rep- 
horse.  Popplewell  r.  Pierce,  1 0  Cush.  resentations  respecting  the  land  which  are 
509  ;  Mory  v.  Bardett,  9  Ad  &  El.  N.  R.  materially  erroneous,  going  to  the  basis  of 
101  ;  Jackson  v.  Smithson,  15  M.  &  W.  the  contract,  equity  will  rescind  the  pur- 
563  ;  Card  v.  Case,  5  M.  G.  &  S.  622  ;  chase,  though  the  vendor  had  no  intention 
Kerwhacker  v.  C.  C.  &c.  R.  R.  Co.,  3  Ohio  to  deceive.''  Taylor  v.  Fleet,  1  Barbour, 
(N.  S.)  172.]  471.  AndseeDoETgett  ».  Everson,3  Story, 

2  Dawson  v.  Chamnev,  5  Ad.  &  El.  164,  R.  733,  1  Story, "Eq.  Jnr.  §  193.  As  to 
N.  S. ;  Storv  on  Bailments,  §§  472,  529.  goods,  see  Johnson  v.  Peck,  1  Woodb.  & 
See  supra,  §§  219,  222.  ilinot,  334. 

»  Piggot  r.  Eastern  Railroad  Co.,  3  M.  ^  Smont  i-.  Ilbery,  10  M.  &  W.  1.     And 

Gr.  &  So.  229.     And  see  McCreadv  v.  S.  see  Storv  on  AErencv,  §  265  a  :  Pasley  v. 

Car.  Railroad  Co.,  2  Strobh.  356.    "  Freeman,  3  T.  R.  57  :  Haycraft  v.  Cr&isy, 

♦  Collins  1-.  Evans,  8  Jur.  345,  5  Ad  &  2  East,  92 ;  Wilson  v.  Fuller,  3  G.  &  D.  570. 


206  LAW   OF  EVIDENCE.  [PART  IV. 

§  230  h.  Whenever  this  action  is  brought  for  an  injury  to  land^ 
it  is  sufficient  for  the  plaintiff  to  allege  and  prove  his  possession  of 
the  property,  in  order  to  entitle  him  to  the  action  against  a  stran- 
ger. If  the  possession  was  in  fact  vacant,  proof  of  his  title  alone 
will  be  constructive  proof  of  his  possession.  The  nature  and 
value  of  his  interest  will  become  material,  only  as  they  affect  the 
amount  of  the  damages  ;  and  for  this  purpose  an  equitable  title 
may  be  shown,  and  will  be  sufficient  to  entitle  him  to  full  dam- 
ages.i 

§  231.  Under  the  general  issue,  the  defendant  is  ordinarily  per- 
mitted to  give  evidence  of  any  matters  ex  post  facto,  which  show 
that  the  cause  of  action  has  been  discharged,  or  that  in  equity  and 
conscience  the  plaintiff  ought  not  to  recover.^  Thus,  a  reiease,  a 
former  recovery,  or  a  satisfaction,  may  be  given  in  evidence.^  So, 
also,  in  an  action  for  enticing  away  a  servant,  the  defendant  may, 
under  this  issue,  give  evidence  that  the  plaintiff  has  already 
recovered  judgment  for  damages  against  the  servant,  for  departing 
from  his  service,  and  that  since  the  commencement  of  the  present 
action,  this  judgment  had  been  satisfied.'*  So,  in  an  action  on  the 
case  for  beating  the  plaintiff's  horse,  the  defendant  may  show  that 
it  was  done  to  drive  the  horse  from  his  own  door,  which  he  ob- 
structed.^ And  in  an  action  for  obstructing  ancient  lights,  by  the 
erection  of  a  house,  a  customary  right  so  to  do  may  be  given 
in  evidence.^  So,  in  an  action  for  hindering  the  plaintiff  in  the 
exercise  of  his  trade,  it  may  be  shown,  under  this  issue,  that  the 
trade  was  unlawful ; '''  and  in  an  action  for  destroying  a  rookery, 
it  may  be  shown  that  it  was  a  nuisance.^  And,  in  general,  wlier- 
ever  an  act  is  charged  in  this  form  of  action  to  have  been  fraudu- 
lently done,  the  plea  of  not  guilty  puts  in  issue  both  the  doin-g 
jf  the  act,  and  the  motive  with  which  it  was  done.^ 

§  232.  But  to  this  rule  there  are  some  exceptions;  such  as 
the  statute  of  limitations  ;  justification,  in  slander,  by  alleging  the 

1  Gardiner  v.  Heartt,  1  Comst.  528,  2  "<  Tarleton  v.  McGawley,  Peake's  Cas. 
Barb.  S.  C.  R.  165  ;  Schenck  v.  Cuttrell,     207,  per  Ld.  Kcnvon. 

I  N.  Jer.  5.  8  Hannam  v.  Mockett,  2  B.  &  C.  934.  But 

2  Bird  V.  Randall,  3  Burr.  1353,  per  Ld.  if  it  be  a  public  nuisance,  not  spcci;illy  inju 
Mansfield.  rious  to  the  partv,  he  has  no  rii^ht  to  abate 

3  Ibid. ;  Yelv.  174  a,  note  (1),  bv  Met-  it.  Dimes  v.  Pctlev,  15  Ad.  &  El.  276,  N.  S. 
calf;  Stephen  on  Plead.  182,  183' (Am.  ^  Mummery  I'.'Paul,  8  Jui.  3S6.  So 
ed.  1824)  ;  Stafford  r.Clark,  2  Bing.  377  ;  in  an  action  on  the  case  for  wrongfully 
Anon.,  1  Com.  R.  273.  keeping    a  ferocious   dog,   knowing   him 

*  Bird  V.  Randall,  3  Burr.  1345.  to  be  of  such  a  disposition,  the  plea  of  not 

^  Slater  v.  Swann,  2  Stra.  872.  guilty  is  held  to  put  in  issue  the  scienter 

«  Anon..  1  Com.  R.  273.  Card  v.  Case.  12  Jir.  247. 


PART  IV.]  CASE.  207 

truth  of  the  words ;  retaking  on  fresh  pursuit  of  a  prisoner  es- 
caped ;  which  cannot  be  given  in  evidence,  unless  specially 
pleaded.^ 

§  232  a.  The  defendant  may  also  prove,  in  defence,  that  the 
injury  might  have  been  avoided  by  the  use  of  due  care  on  the  part 
of  the  plaintiff ;  for  the  question  is,  not  only  whether  the  defendant 
did  an  improper  act,  but  whether  the  injury  to  the  plahitiff  may 
legally  be  deemed  the  consequence  of  it.  But  it  will  not  be 
sufficient,  as  a  complete  defence  to  the  action,  to  show  merely  that 
the  plaintiff  is  chargeable  with  want  of  due  care,  unless  the  injury 
was  entirely  caused  by  such  omission ;  for  if  it  only  contributed 
to  it  in  part,  the  plaintiff  may  recover ;  and  his  own  misconduct 
in  that  case,  if  available  to  the  defendant,  will  go  in  reduction 
of  damages.^  And  if  the  plaintiff  was  at  the  time  a  passenger 
in  the  vehicle  of  another,  he  becomes  so  far  identified  with  the 
owner  and  his  servants  as  that  their  want  of  due  care  may  be 
shown  in  defence  of  the  action.^ 

§  232  h.  Where  the  injury  complained  of  was  occasioned  by  the 
negligence  of  a  person  in  the  defendant's  employment,  it  has  often 
been  found  extremely  difficult  to  determine  whether  the  relation 
of  master  and  servant  existed,  so  as  to  charge  the  defendant  or 
not.  But  by  comparing  the  adjudged  cases,  the  principle  to 
be  deduced  from  them  seems  to  be  this ;  that  where  the  person 
employed  is  in  the  exercise  of  a  distinct  and  independent  employ- 
ment, the  owner  parting,  for  the  time,  with  all  control  over  that 
which  is  the  subject  of  the  bailment  or  contract,  and  having  no  con- 
trol over  the  conduct  of  the  person  employed,  or  his  servants,  such 
person  stands  in  the  relation  of  a  sub- contractor  only,  and  the 
persons  whom  he  employs  are  his  own  servants,  and  not  those  of 
the  principal  party ;  and  therefore  the  latter  is  not  liable  for  their 
negligence  or  misdoing.  It  is  to  this  point,  therefore,  that  the 
evidence  on  each  side  should  be  directed.*  Thus,  the  trustees 
under  a  public  road-act  were  held  not  responsible  for  the  negli- 
gence of  the  men  employed  in  making  the  road,  the  work  being 
carried  on  by  a  regular  surveyor  in  their  absence,  whom  they  had 

1  1  Chitty  on  PI.  pp.  433,  434.  19  Law  J.  273  Exch.     See  Moore  v.  Ab- 

"^  Butterfield  v.  Forrester,  1 1  East,  60  ;  hot,  2  Reding.  46. 
Marriott  ^;.  Stanley,  1  M.  &  G.  568  ;  Bridge         ^  Thorosood  v.  Bryan,  8  M.  G.  &  S. 

i;.  The  Grand  Junction  Kailw.  Co.,  3  M.  &  115  ;  Cattlin  v.  Hills,  Id.  123. 
W.  244;  Clayards  r.  Dethick,  12  Ad.  &         *  Story  on  Agency,  §  4.54  a  C2d  edit.)  228 

El.  439,  N.  S. ;  Perkins  v.  Eastern  Railr.  -  233  ;  [Powell  v.  Ucveney,  3  Gush.  300  • 

Co.,  16  Shepl.  307  ;  Greenland  v.  Chaplin,  Lynch  v.  Nardin,  1  Ad.  &  Ell.  N.  S.  29.] 


208 


_A"W   OF  EVIDENCE. 


[part  IV 


no  right  to  turn  out  of  employment.^  So,  where  a  licensed  drover 
undertook  to  drive  an  ox  to  the  slaughter-house,  and  sent  him 
by  his  own  servant,  through  whose  negligence  the  ox  did  damage ; 
it  was  held  that  the  drover,  and  not  the  owner  of  the  ox,  was 
liable  for  the  damage,  as  he  was  in  the  exercise  of  an  independent 
employment,  and  had  the  exclusive  control  of  the  subject  of  the 
contract. 2 


1  Duncan  v.  Findlater,  6  CI.  &  Fin.  894, 

aio. 

2  Milliffan  v.  Wedge,  12  Ad.  &  El.  737. 
And  see  Burgess  i'.  Gray,  14  Law  Journ. 
184,  N.  S.  ;  Quarman  v.  Burnett,  6  M.  & 
W.  499  ;  Kapson  v.  Cubitt,  9  M.  &  W. 
710  ;  White  v.  Hague,  2  Dowl.  &  Ry.  33 ; 
Earl  V.  Hall,  2  Met.  3.53.  These  and  oth- 
er cases  cited  in  them,  devolve  the  liability 
on  the  person  who  was  the  master  of  the 
enterprise.  Other  cases,  apparently  nearly 
similar  in  tiieir  facts,  have  held  the  general 
owner  liable ;  but  it  will  be  found,  on  ex- 
amination, that  in  those  cases  the  general 
owner  of  the  subject  was  also  the  master 
of  the  work,  retaining  the  management 
and  control,  and  rendering  the  contract  in 
essence  but  a  case  of  mere  day  labor  or 
ordinary  service.  See  Littledale  v.  Ld. 
Lonsdale,  2  H.  Bl.  267,  299  ;  Stone  v. 
Codman,  15  Pick.  '>97  ;  Wanstall  v.  Poo- 
ley,  6  CI.  &  I'in.  910,  vote;  Randleson  v. 
Murray,  8  Ad.  &  El.  109  ;  Sly  v.  Edgely, 
6  Esp.  6  ;  Matthews  v.  W.  Lond.  Waterw. 
Co.,  4  Cami^b.  403  ;  Leslie  v.  Rounds,  4 
Taunt.  649.  The  case  of  Bush  v.  Stein- 
man,  1  B.  &  P.  404,  in  which  the  owner 
of  a  house  was  held  liable  for  the  negli- 
gence of  laborers  employed  by  a  contrac- 
tor, who  had  undertaken  to  repair  the 
house  by  the  job,  was  disapproved  as  an 
extreme  case,  by  the  Ld.  Chancellor,  in 
Duncan  v.  Findlater,  6  CI.  &  Fin.  903, 
and  by  Ld.  Brougham,  Id.  909  ;  and  was 
doubted  by  Ld.  Denman,  in  Milligan  v. 
Wedge,  supra,  and  it  has  since  been  over- 
ruled in  Reedie  v.  N.  West.  Railw.  Co.,  13 
Jur.  659.  By  the  Assizes  Act  of  11  Geo.  4 
&  1  W.  4,  c.  68,  §  8,  common  carriers  are 
rendered  liable  for  the  felonious  acts  of 
servants  in  their  employnwit.  Under  this 
statutory  provision,  a  railway  corporation 
is  held  liable  for  the  acts  of  tlie  servants 
of  those  who  had  undertaken,  by  special 
contract,  to  do  this  part  of  the  business. 
Machu  V.  The  London  &  Southwestern 
Kailw.  Co.,  12  Jur.  501.  [The  case  of 
Bush  V.  Steinman  was  examined  at  con- 
siderable length  by  Thomas,  J.,  in  Hilliard 
r.  Richardson,  3  Gray,  349;  and  its  au- 
thority was  denied.  That  case  decides 
that  the  owner  of  land  who  employs  a  car- 
penter, for  a  specific  price,  to  alter  and 


repair  a  building  thereon,  and  to  furnish 
all  materials  for  this  purpose,  is  not  liable 
for  damages  resulting  to  a  third  person 
from  boards  deposited  in  the  highway  in 
front  of  the  laud  by  a  teamster  in  the  em- 
ploy of  the  carpenter,  and  intended  to  be 
used  in  such  alteration  and  repair.] 

Where  several  persons  are  employed  in 
the  same  service,  and  one  of  them  is  in- 
jured by  the  carelessness  of  another,  the 
master  or  emploper  is  not  liable.  Winter- 
bottom  V.  Wright,  10  M.  &  W.  109; 
Strange  v.  McCormick,  3  Am.  Law  Jour. 
398,  N.  S. ;  Farwell  v.  Boston  &  Worces- 
ter Railroad  Corp.,  4  Met.  49 ;  Priestley  »• 
Fowler,  3  M.  &  W.  1  ;  Murray  v.  S.  Car 
Railroad  Co.,  1  McMull.  385;  Hayes  » 
Western  Railroad  Corp.,  3  Cush.  276 
[The  fact  that  the  servant  injured  is  i 
minor,  does  not  at  all  affect  his  legal  rights 
King  V.  Boston  &  Worcester  Railroad,  8 
Cush.  112.  The  obligation  of  a  corpora- 
tion, so  far  as  respects  persons  in  their 
employment,  does  not  extend  beyond  the 
use  of  ordinary  care  and  diligence.  Ibid. 
It  would  present  a  very  different  case  if 
the  corporation  should  employ  an  unfit 
and  improper  person,  and  in  that  way  the 
servant  should  be  exposed  to  and  suffer 
injury.  Fletcher,  J.  Albro  v.  Agawam 
Canal  Co.,  6  Cush.  77.  It  does  not  affect 
the  principle  at  all  that  the  duties  of  the 
two  servants  may  be  different,  those  of 
one  being  of  a  higher  grade  t^ian  these  of 
the  other ;  as  where  an  operative  is  injured 
by  the  gross  negligence  and  want  of  skill 
of  a  superintendent,  both  being  servants 
of  the  same  master,  and  actincc  in  the  same 
common  service.  Albro  v.  Agawam  Canal, 
6  Cush.  75.  See  also  Brown  v.  Maxwell, 
6  Hill,  592  ;  Coon  v.  Syracuse,  &c.  Rail 
road,  6  Barb.  231  ;  Ryan  v.  Cumberland, 
&c.  Railroad,  23  Penn.  State  R.  387  ; 
Hutchinson  v.  York,  &c.  Railroad  Co.,  5 
W.  H.  &  G.  343 ;  Wigmore  v.  Jay,  lb. 
354;  Seymour  u.  Maddox,  16  Ad.  &  El. 
(N.  S.)  326.  Nor  is  one  servant  liable  to 
an  action  by  another  servant  in  the  em- 
ployment of  the  same  master,  for  damages 
occasioned  by  the  negligence  of  the  first 
servant  in  such  employment.  Albro  v. 
Jaquith,  4  Gray,  99;  Winterbottom  v 
Wright,  10  M.   &  W.   115.     In  ordinary 


PART  IV."! 


CASE. 


209 


cases,  where  a  workman  is  employed  to  do 
a  dangerous  job,  or  to  work  in  a  service 
of  peril,  if  the  danger  belongs  to  the  work 
itself,  or  to  the  service  in  which  he  engages, 
he  wUl  be  held  to  all  the  risks  which  be- 
long to  either ;  but  where  there  is  no  dan- 
ger in  the  work  or  service  itself,  and  the 


peril  grows  out  of  extrinsic  causes  or  cir- 
cumstances, which  cannot  be  discovered 
by  the  use  of  ordinary  precaution  and 
prudence,  the  employer  is  liable  precisely 
as  a  third  person,  if  the  loss  or  injury  is 
caused  by  his  neglect  or  want  of  cars 
Ferry  v.  Marsh,  25  Ala.  659.] 


voi.  n. 


t« 


210  LAW  OF  rVTDENCE.  [PART  IV. 


COVENANT.! 

f*  §  233.  B7  common  law,  no  general  issue  in  this  action. 

234.  Plea  of  non  est/actum  only,  puts  in  issue  so  much  of  deed  as  is  spread  upon 

the  record. 

235.  If  a  condition  precedent  is  put  in  issue,  performance  according  to  terms  of  cove- 

nant must  be  proved. 

236.  Breach  must  be  proved  as  laid.     Voluntarily  putting  it  out  of  one's  power  to 

perform  his  agreement,  is  a  breach. 

237.  Must  prove  that  covenant  is  snbstantialli/  broken. 

238.  If  plaintiff  has  better  means  of  knowledge  of  event  in  which  defendant's  duty 

arises,  he  must  notify  him. 

239.  Wliere  defendant  is  sued  as  assignee  of  original  covenantor,  suflScient  to  prove 

acts  from  which  assignment  may  be  inferred.    Defences  under  an  issue  on 
the  assignment. 

240.  Plaintiff  claiming  as  assignee  must  precisely  prove  his  title. 

241.  Seisin  in  fact  satisfies  the  covenant  of  seisin. 

242.  What  constitutes  a  breach  of  the  covenant  of  freedom  from  encumbrances. 

843.  Breach  of  covenant  for  quiet  enjoyment  proved  by  some  disturbance  of  the  pos 
session  by  reason  of  adverse  right  existing  at  the  time  of  making  the  cove- 
nant. 

244.  Breach  of  covenant  o^ '"arrant)/  proved  only  by  evidence  of  an  actual  ouster  or 

eviction. 

245.  Covenant  against  assigning  and  underletting  not  broken  by  involuntary  transfer. 
245  a.  Proof  of  breach  of  covenant  to  repair. 

246.  Effect  of  plea  of  non  est  factum  to  a  declaration  on  a  lease. 

247.  Defendant  has  burden  of  proof  on  plea  of  performance  and  is  entitled  to  open 

and  close.] 

§  233.  In  this  action,  by  the  common  law,  there  is  no  general 
issue  or  plea,  which  amounts  to  a  general  traverse  of  the  whole 
declaration,  and  of  course  obliges  the  plaintiff  to  prove  the 
whole; 2  but  the  evidence  is  strictly  confined  to  the  particular 
issue  raised  by  a  special  plea,  sucli  as  non  est  factum.,  which  will 
be  treated  under  the  head  of  Deed ;  and  Duress,  Infancy,  Release, 

^  For  a  fnll  and  an  elaborate  discussion  ishment  of  special  pleading,  the  plea  of  non 
of  the  doctrine  of  Covenants  for  Title,  the  est  factum  has  been  adopted  in  practice,  as 
student  is  referred  to  the  recent  work  of  being  in  effect  a  general  traverse  of  the  dec- 
Mr.  Rawle,  on  that  subject.  laration.     Granger  v.  Granger,  6  Hamm. 

2  1  Chitty  on  PI.  428.     In  some  of  the  (Ohio)  R.  41  ;  Provost  v.  Calder,2  Wend. 

United  States,  under  statutes  for  the  abol-  517. 


PART  IV.]  COVENANT.  211 

<fec.,  which  will  be  considered  under  those  titles.  The  liability 
of  an  heir,  on  the  covenant  of  his  ancestor,  will  be  treated  under 
the  head  of  Heir. 

§  234.  If  the  deed  is  not  put  in  issue  by  the  plea  of  non  est 
factum^  the  defendant,  by  the  rules  of  the  common  law,  is  under- 
stood to  admit  so  much  of  the  deed  as  is  spread  upon  the  record. 
If  the  plaintiff  would  avail  himself  of  any  other  part  of  the  deed, 
he  must  prove  the  instrument,  by  the  attesting  witnesses,  or  by 
secondary  evidence  in  the  usual  way.^ 

§  235.  If  the  plaintiff 's  right  of  action  depends  on  the  per- 
formance of  a  condition  precedent,  which  is  put  in  issue,  he  must 
prove  a  performance  according  to  the  terms  of  the  covenant. 
It  will  not  suffice,  in  an  action  on  a  specialty,  to  show  that  other 
terms  have  been  substituted  by  parol,  although  the  substituted 
agreement  has  been  fully  performed.^  Thus,  where  the  plaintiff 
sued  in  covenant  for  the  agreed  price  for  building  two  houses, 
which  he  bound  himself  to  finish  by  a  certain  day,  and  averred 
performance  in  the  terms  of  the  covenant ;  proof  of  a  parol  enlarge- 
ment of  the  time,  and  of  performance  accordingly,  was  held  inad- 
missible.^ 

§  236.  The  breach,  also,  must  be  proved  as  laid  in  the  declara- 
tion. And  here  it  is  a  general  principle,  that  where  the  party 
destroys  that  which  was  a  subject  of  his  agreement,  or  voluntarily 
puts  it  out  of  his  power  to  perform  that  which  he  engaged  to 
perform,  it  is  a  breach  of  his  covenant.*  Thus,  if  he  covenant  to 
deliver  the  grains,  made  in  his  brewery,  and  before  delivery  he 
renders  them  unfit  for  use  by  mixing  hops  with  them ;  ^  or,  to 
deliver  up   a  certain   obligation   of  the   covenantee,  and   before 

1  "Williams  v.  Sills,  2  Campb.  519  ;  ante,  alone,  he  is  excused  ;  but  if  the  duty  was 
Vol.  1,  §§  569-582.  created  by  his  own  contract,  he  is  still  an 

2  1  Chitty  on  PI.  280,  3  T.  R.  592.  swerable  for  the  non-performance.  See 
But  if  the  original  agreement  was  not  un-  Piatt  on  Covenants,  p.  582,  and  cases  there 
der  seal,  evidence  of  a  parol  enlargement  cited.  Regina  v.  Justices  of  Leicestershire, 
of  the  time,  with  performance  accordingly,  15  Ad.  &  El.  88,  N.  S.  A  covenant  to  keep 
is  admissible.     Ante,  Vol.  1,  §  304.  in  repair  is  broken  if  the  lessee  pull  down 

"  Littler  v.  Holland,  3  T.  R.  590.     And  the  buildings ;  but  a  covenant  to  leave  the 

see  Maryon  i-.  Carter,  4  C.  &  P.  295  ;  Par-  premises  in    repair    is  not,   provided   he 

adine   v.   Jane,  Aleyn,  26;    Campbell   v.  rebuilds    them   within   the  term.      Shep. 

Jones,  6  T.  R.  571.  Touchst.  p.    173.      [*  The  description   of 

*  Hopkins  r.  Young,  11  Mass.  302.    But  land  in   a  deed  as  bounding   on  a  way 

if  the  covenantor  involuntarily  becomes  un-  amounts  to  a  covenant  that  there  is  such 

able  to  perform,  but  the  disability  is  re-  a  way,  and  is  by  implication  a  grant  of  a 

moved  before  the  day  of  perlbrmance  ar-  right    of  way.      Greenwood    v.     Wilton 

rives,  it  is  no  breach.     Heard  f.  Bowers,  Railw.,   3  Foster,  261.] 

23  Pick.  455.     Where  the  performance  of  ^  Griffith  v.  Goodhnnd,  T,  Raym.  464. 

a  duty  is  rendered  impossible,  by  the  act  And  see  Mayne's  case.  5  Co.  21. 
»f  God,  if  the  duty  was  created  by  the  law 


212  LAW  OF  EVIDENCE,  [PART  IV. 

delivery  he  recovers  judgment  upon  it ;  ^  or,  to  permit  the  cov- 
enantee to  sue  in  his  name,  agreeing  to  assign  to  him  the  judg- 
ment when  recovered,  and  before  assignment  he  releases  the 
judgment  debtor ;  ^  or,  that  certain  goods  of  a  debtor  shall  be 
forthcoming  to  the  officer,  and  in  the  mean  time  he  causes  them 
to  be  seized  on  process  in  his  own  favor ;  ^  the  covenant  is  broken. 
And  in  regard  to  covenants  of  indemnity^  this  distinction  has  been 
taken  :  that  where  the  covenant  is  to  indemnify  against  a  liability 
already  incurred,  it  is  not  broken  till  the  covenantee  is  sued  upon 
that  liability ;  but  where  the  debt  or  duty  may  accrue  in  future, 
the  covenant  is  broken  whenever  the  liability  to  a  suit  arises.* 

§  237.  It  will  be  sufficient,  as  we  have  already  seen,^  to  prove 
the  breach  substantially  as  laid ;  but  it  must  also  appear,  that  the 
covenant  is  substantially  broken.  If  the  allegation  is  of  a  total  loss 
or  destruction,  it  will  be  supported  by  proof  of  a  partial  loss ; 
for  it  is  the  loss  or  damage,  and  not  the  extent  of  it,  which  is  the 
substance  of  the  allegation.^  So,  where  the  tenant  covenanted  to 
keep  the  trees  in  an  orchard  whole  and  undefaced,  reasonable  use 
and  wear  only  excepted,  the  cutting  down  of  trees  past  bearing, 
was  held  to  be  no  breach ;  for  the  preservation  of  the  trees  for 
fruit  was  the  substance  of  the  covenant.'^  But  where  the  breach 
assigned  was,  that  the  tenant  had  not  used  the  farm  in  a  husband- 
like manner,  but,  on  the  contrary,  had  committed  waste,  evidence 
of  acts  not  amounting  to  waste  was  held  inadmissible ;  for  tho 
waste  was  the  substance  of  the  allegation.^ 

§  238.  In  regard  to  the  averment  of  proof  of  notice  to  the  do 
fendant,  a  distinction  is  taken  between  things  lying  more  properly 

1  Teat's  case,  Cro.  El.  7.  »  Harris  v.  Mantle,  3  T.  R.  307.    And 

2  Hopkins  v.  Young,  II  Mass.  302.  see  ante.  Vol.  1,  §  52.     [Where  there  was 
8  Whitman  v.  Slack,  1   Harringt.  144.     a  covenant  prohibiting  the  erection  of  a 

The  neglect  of  an  officer  to  return  an  exe-  forge  or  furnace  for  the  manufacturing  of 

cution,  under  which  he  has  sold  an  equity  iron,   the  erection  of  buildings   in   which 

of  redemption,  has  been  held  a  breach  of  were   forges  for  heating,   moulding,   and 

the  covenant  in  his  deed  of  sale,  that  he  working  iron  was  held  not  to  be  a  In-each 

had  obeyed  all  the  requisitions  of  law  in  thereof.     Rogers   v.   Danforth,   1    Stockt. 

the  proceeding.    Wade  w.  Merwin,  11  Pick.  (N.  J.)  289.]     [*  A  covenanted  to  convey 

280.     [*  A  covenant  for  payment  of  a  sum  to  B  certain  land,  "being  the  same  land 

certain,  although  the  duty  does  not  accrue  which   was    purchased   from   government 

until   after  notice  given,   cannot  be  dis-  by  C  &  D,  and  by  said  C  &  D    sold   to 

charged  by  parol  before  breach.     Spence  A."     It  was  held,  that  parol  evidence  was 

V.  Healey,  20  Eng.  L.  &  Eq.  337].  inadmissible  to  show  that  the  land  intcnd- 

*  3  Com.  Dig.  110,  Condition,  I.;  Lew-  ed  to  be  embraced  in  the  covenant  was 
is  V.  Crockett,  3  Bibb.  196.  land  conveyed  to  A  by  C  alone,     or   D 

*  Ante,  Vol.  1,  §§  56-74.  alone,  for  the  covenant  was  not  silent  or 

*  Ante,  Vol.  1,  §  61.  ambiguous  on  that   subject.     Marshall   »' 
T  2  Stark.  Ev.  248,  cites  Good  v.  E[ill,  2     Haney  4  Md.  498.] 

Esp.  690 


PART  IV.]  COVENANT.  213 

in  the  knowledge  of  the  plaintiff,  and  things  lying  in  the  knowl- 
edge of  the  defendant,  or  common  to  them  both.  In  the  former 
case,  the  plaintiff  must  aver  and  prove  notice  to  the  dofeudant. 
But  where  the  party  bound  has  the  same  means  of  ascertaining 
the  event  on  which  his  duty  arises,  as  the  party  to  whom  he  is 
bound,  neither  notice  nor  request  are  necessary  to  be  proved.^ 

§  239.  Where  the  defendant  is  sued  as  assignee  of  the  original 
covenantor,  and  the  issue  is  on  the  assignment,  it  will  be  sufficient 
for  the  plaintiff  to  give  evidence  of  any  facts  from  which  the 
assignment  may  be  inferred ;  such  as  possession  of  the  premises 
leased,  or  payment  of  rent  to  the  plaintiff.^  For  it  is  never  neces- 
sary either  to  allege  or  prove  the  title  of  the  adverse  party  with  as 
much  precision  as  in  stating  one's  own.  Yet  if  the  plaintiff  does 
allege  the  particulars  of  the  defendant's  title,  he  must  prove  them 
as  laid.3  Under  an  issue  on  the  assignment,  the  defendant  may 
show  that  lie  holds  as  an  under-tenant,  and  not  as  an  assignee ;  * 
or,  that  he  is  an  assignee,  not  of  all,  but  only  of  a  part  of  the 
premises.'  He  may  also  show  in  defence,  under  a  proper  plea, 
that  the  covenant  was  broken,  not  by  himself,  but  by  another  per- 
son, to  whom  he  had  previously  assigned  all  his  interest  in  the 

1  1  Chitty  on  Plead.  286 ;  Keys  v.  Pow-  plaintiiF  accordingly.     By  virtue  of  which 

ell,  2  A.  K.' Marsh.  253  ;  Peck  v.  McMur-  demise,  the  said  C.  D.  on  the day  of 

try.   Id.   358;  Muldrow   v.  McCleland,  1  entered  into  the  same  premises,  and 

Littell,  1.  was  possessed  thereof  for  the  term  afore- 

2  Williams  t'.  "Woodward,  2  Wend.  487  ;  said.  (*)    And  after  the  making  of  said  in- 
Id.  563  ;   Derisley  v.  distance,  4  T.  R.  denture,  and  during  the  term  aforesaid,  to 

75;  Piatt  on  Gov.  64;  Holford  v.  Hatch,  wit,    on    tlie day  of [tviming   any 

Doug.   178;    Hare  v.   Cator,   Cowp.   766.  c?a^  6e/bre  ^Ae  ^/-eac^],  all  the  estate  and  in- 

On  the  liability  of  an  assignee,  see  Piatt  terest  of  the  said  C.  D.  in  said  term,  then 

on   Gov.    400-465.     In    the    declaration  unexpired,  by  an  assignment  thereof  then 

against  an  assignee,  the  assignment  is  al-  made,  came  to  and  was  vested  in  the  de- 

leged  as  in  the  following  precedent  of  a  fendant,  who  thereupon   entered  into  the 

declaration  by  a  lessor,  against  the  assignee  said   demised   premises   and  became  pos- 

qfhis  lessee,  for  non-payment  of  rent.  sessed  thereof,  and  continued  so  possessed 

"  In    a    plea    of   covenant.     For    that  from  thence  hitherto    [or,  '  until  the 

whereas  heretofore,  to  wit,  on  the day  day  of '].     Now,  the  plaintiff  in  fact 

of ,  by  a  certain  indenture  then  made  says,  that  after  the  making  of  said  assign- 
between  the  plaintiff  of  the  one  part  and  ment,  and  during  the  said  term,  and  be- 
one    G.    D.   of  the  other  part,   one   part  fore   the   commencement  of  this   suit,   to 

whereof,  sealed  with  the  seal  of  the  said  G.  wit,   on   the day   of the   sum   of 

D.,  the  plaintiff  now  brings  here  into  court,  of  the  rent  aforesaid  became  due  and 

the  plaintiff  demised  and  leased  to  the  said  was  owing  to  the  plaintiff  from  the  said 

C.  D.  a  certain  messuage,  lands,  and  prem-  defendant,  and  still  is  in  arrear  and  un- 

ises  situated  in ,  to  have  and  to  hold  paid,  contrary  to  the  covenant  aforesaid." 

the  same  to  the  said  C.  D.  and  his  assigns,         ^  Stephen   on  Pleading,  pp.   337,  338, 

from  the  day of ,  for  the  full  term  Turner  v.  Eyles,  3  B.  &  P.  456,  461;  2 

of years  then  next  ensuing;  yielding  Phil.  Ev.  151   (7th  edit.);    mite,    Vol.   1, 

and  paying  therefor  to   the   plaintiff  the  §  60. 

clear  yearly  rent  of ,  payable  [here  de-        *  Holford  v.  Hatch,  1  Doug.  182;  Earl 

scribe  the  mode  and  times  of  payment],  which  of  Derby  v.  Taylor,  )  East,  502. 
rent  the  said  C.  D.  did  thereby  for  himself        ^  Hare  v.  Cator,  Cowp.  7bt/. 
and  his  assigns    covenant  to  pay  to   the 


214 


LAW   OF  EVIDENCE. 


[part  IV 


premises ;  and  in  such  case  it  is  not  necessary  for  him  to  prove 
either  the  assent  of  the  assignee,  or  notice  to  his  own  lessor,  of 
the  assignment.^  It  has  been  held,  that  where  the  lessee  of  a 
term  of  years  assigns  his  interest  by  way  of  mortgage,  the  mort- 
gagee is  not  liable  to  the  landlord,  as  assignee,  until  he  has  en- 
tered upon  the  demised  premises ;  ^  but  this  doctrine  has  since 
been  overruled,  and  the  mortgagee  held  liable  as  assignee,  before 
entry .2  But  an  executor  is  not  liable  as  assignee,  without  proof 
of  an  actual  entry.* 

§  240.  But  where  the  plaintiff  claims  as  assignee,  he  must  pre- 
cisely allege  and  prove  the  conveyances,  or  other  mediums  of 
title,  by  which  he  is  authorized  to  sue.^  If  he  claims  as  assignee 
of  a  covenant  real,  he  must  show  himself  grantee  of  the  land,  by 
a  regular  legal  conveyance,  from  a  person  having  capacity  to  con- 
vey.^    And  in  regard  to  covenants  real,  on  which  any  grantee  of  * 


1  Pitcher  v.  Tovey,  1  Salk.  81 ;  Taylor 
V.  Shum,  I  B.  &  P.  21. 

2  Eaton  V.  Jaques,  2  Doug.  455.  It  is 
still  held,  that  the  mortgagee  of  a  ship  is 
not  liable  as  owner,  until  he  takes  posses- 
sion. Brooks  V.  Bondsey,  17  Pick.  441  ; 
Colson  V.  Bonzey,  6  Greenl.  474 ;  Abbott 
on  Shipping,  p.  19;  Briggs  v.  Wilkinson, 
7  B.  &  C.  30. 

^  Williams  v.  Bosanquet,  1  B.  &  Bing. 
238,  4  Kent,  Comm.  145;  Woodfiilt's 
Law  of  Landl.  &  Ten.  p.  183  {5th  ed.  by 
Wollaston).  Sedqncere;  and  see  Astor  i\ 
Hoyt,  5  Wend.  603;  Astor  v.  Miller,  2 
Paige,  R.  68  ;  Bourdillon  v.  Dalton,  1  Esp. 
234 ;  Cook  v.  Harris,  1  Ld.  Raym.  367 ; 
Co.  Lit.  46  b;  Rex  v.  St.  Michaels,  2 
Doug.  630,  632;  Blaney  v.  Bearce,  2 
Greenl.  132  ;  Mclver  v.  Humble,  16  East, 
199. 

*  Buckley  v.  Pirk,  1  Salk.  316  ;  Jevans 
V.  Harridge,  1  Saund.  1  (note  1),  by  Wil- 
liams. 

^  Steph.  on  Plead.,  p.  338.  In  an  action 
by  an  assignee,  liis  title  is  set  forth  as  in 
the  following  precedent  of  a  declaration  by 
a  grantee  of  the  reversion,  agdinst  the  lessee  of 
his  grantor,  for  non-payment  of  rent. 

"  In  a  plea  of  covenant.  For  that  where- 
as heretofore,  to  wit,  on  the day  of 

one  J.  S.  was  seised  in  his  demesne  as 
of  fee  of  and  in  the  following  described 
messuage,  land,  and  tenements,  situated  in 
[hei'e  describe  the  premises.]  And  be- 
ing so  seised,  on  the  same  day,  by  a  certain 
imk'Htiire  made  between  him  of  the  one 
part  and  the  defendant  of  the  other  i)art, 
one  })art  whereof,  sealed  with  the  seal  of 
the  said  defendant,  the  plaintiff  now  here 
brings  into   court,   [or,  which  indenture. 


being  in  neither  part  in  the  possession, 
custody,  or  control  of  the  plaintiff,  he  can- 
not produce  in  court,]  the  said  J.  S.  de- 
mised the  same  premises  to  the  defendant, 
[here  proceed,  mutatis  mutandis,  as  far  as 
this  mark  (*)  in  the  preceding  form.\  And 
after  the  making  of  said  indenture,  to  wit, 
on  the day  of the  said  J.  S.,  be- 
ing seised  of  the  reversion  of  said  estate, 
by  his  deed  of  bargain  and  sale,  [or,  if  in 
any  other  form  of  conveyance,  state  it,]  duly 
executed,  acknowledged,  and  recorded,  and 
now  here  by  the  plaintiff  produced  in 
court,  for  a  valuable  consideration  therein 
mentioned,  [Ijargaincd,  sold,]  and  conveyed 
the  said  reversion  of  and  in  the  said  prem- 
ises to  the  plaintiff,  to  have  and  to  hold 
the  same  with  the  appurtenances  to  the 
plaintiff  and  his  heirs  and  assigns  forever  ; 
by  virtue  of  which  deed  the  plaintiff  there- 
upon became  seised  of  the  said  reversion 
according  to  the  tenor  of  the  same,  and 
has  ever  since  continued  to  be  so  seised 
thereof.  Now  the  plaintiff  in  fact  says 
tliat  after  the  making  of  said  deed  [of  bar- 
gain and  sale]  and  during  the  said  term 
[conclude  as  in  the  preceding  form."] 

6  Milnes  v.  Branch,  5  M.  &  S.  411  ; 
Roach  V.  Wadham,  6  East,  289  ;  2  Sngd. 
Vend.  479,  489-491;  Randolph  v.  Kin- 
ney, 3  Rand.  394  ;  Beardsley  v.  Kniglit,  4 
Verm.  R.  471.  The  action  for  breach  of  a 
covenant  real,  lies  only  for  him  who  held 
the  land  at  the  time  of  the  breach.  A 
mesne  covenantee  or  owner  has  no  right 
of  action  for  damages,  until  he  has  paid 
them  to  those  who  have  come  in  under 
himself.  Chase  v.  Weston,  12  N  Hamp. 
413. 


PART  IV.]  COVENANT.  215 

the  land  may  sue  the  grantor  in  his  own  name,  or  may  be  sued, 
it  may  not  be  improper  here  to  observe,  (1.)  that  they  are  always 
such  as  have  real  estate  for  their  subject-matter  ;  and  (2.)  that 
they  run  with  the  land,  that  is,  that  they  accompany  the  lawful 
seisin,  and  are  prospective  in  their  operation.  If  there  is  no 
seisin,  the  covenant  remains  merely  personal.^  The  object  of 
these  covenants  is  threefold :  (1.)  To  preserve  the  inheritance  ; 
such  as  covenants  to  keep  in  repair ;  ^  and  covenants  to  keep  the 
buildings  insured  against  fire,  and  if  they  are  burnt,  to  reinstate 
them  with  the  insurance-money.^  (2.)  To  continue  the  relation 
of  landlord  and  tenant,  &c. ;  such  as  to  pay  rent ;  *  to  do  suit  to 
the  lessor's  mill,^  or  to  grind  the  tenant's  corn  ;  ^  and  for  renewal 
of  leases.'^  (3.)  To  protect  the  tenant  in  the  enjoyment  of  the 
land.  Of  this  class  are,  the  covenant  to  warrant  and  defend  the 
premises,  to  him  and  his  heirs  and  assigns,  against  all  lawful  claims 
and  demands ;  ^  to  make  further  assurance ;  ^  to  remove  encum- 
brances ;  I*'  to  release  suit  and  service ;  ^^  to  produce  title-deeds  in 
any  action,  in  support  or  defence  of  the  grantee ;  ^^  for  quiet 
enjoyment ;  ^^  never  to  claim  or  assert  title  to  the  premises  ;  i*  to 
supply  the  premises  with  water ;  ^^  to  open  a  street  on  which  the 

^  Piatt    on   Covenants,   p.   63  ;    Shep.  fort,  5  Cow.  137  ;  Van  Horn  v.  Grain,  i 

Touclist.  171;  Spencer's  case,  5  Co.  16;  Paige,  455. 

Norman  v.  Wells,  17  Wend.  136;  Nesbit  ^  Middlemore  v.  Goodale,  Cro.  Car.  503 

V.  Nesbit,  Cam.  &  Nor.  R.  324;  Slater  v.  i"  Sprague    v.   Baker,    17    Mass.    586. 

Rawson,  1  Met.  450.     The  nature  of  cov-  Bat  a  covenant  that  the  land  is  not  encum- 

enants  real  is  discussed  in  4  Cruise's  Dig.  bered,  is  personal  only.     Clark  v.  Swift,  3 

tit.  32,  ch.  26,  §  23,  note  (Greenleafs  ed.).  Met.  390. 

2  Piatt  on    Cov.   65,   267 ;  Lougher  v.  "  Co.  Lit.  384  b. 

Williams,  3  Lev.   92;  Demarest  v.  Wil-  i'^  4  Cruise,  Dig.  393,  tit.  32,  ch.  25, 

lard,  8   Cow.  206;  Norman  v.  Wells,  17  §99  ("Greenleafs  edit.) ;  Barclay  r.  Raine, 

Wend.  148;  Pollard  v.   Shaaffer,  1  Dall.  1    Sim.  &  Stu.  449;  Piatt  on  Cov.  227; 

210;     Shelby   v.   Hearne,    6    Yerg.   512;  10  Law  Mag.  353-357. 

Kellogg  ».  Robinson,  6  Verm.  276  ;  Samp-  i^  Noke  v.  Awder,   Cro.  El.  373,   436; 

6on  V.  Easterby,  9  B.  &  C.  505.  Campbell  v.  Lewis,  3  B.  &  Aid.  392  ;  Piatt 

*  Veraon  v.  Smith,  5  B.  &  Ad.  1 ,  per  on  Cov.  470 ;  Markland  v.  Cnimp,  1  Dev. 
Best,  J.;  Piatt  on  Cov.  185;  Thomas  v.  &  Bat.  94  ;  Heath  v.  Whidden,  11  Shepl. 
Von  Kapflf,  6  G.  &  J.  372.  383  ;  WilUams  v.  Burrell,  1  M.  G.  &  S.  402. 

*  Stevenson  v.  Lambard,  5  East,  575 ;  i*  Fairbanks  v.  Williamson,  7  Greenl. 
Ilolford  V.  Hatch,  1  Doug.  183  ;  Hurst  v.  97.  And  if  the  subject  of  the  conveyance 
Rodney,  1  Wash.  C.  C.  R.  375.  be  an  estate  in  expectancy,  by  an  heir  or 

^  This  is  a  real  covenant  as  long  as  the  devisee,  and  the  conveyance  is  lawful,  it 

lessor  owns  both  the  mill  and  the  rever-  attaches   to   the  estate  when  it  comes  to 

sion.      Vivyan  v.  Arthur,  1  B.  &  C.  410,  the  grantor,  in  whose  hands  it  instantly 

42  E.  3,  3,  5  Co.  18.  inures  to  the  benefit  of  the  grantee,  and 

^  Dunbar  v.   Jumper,    2    Yeates,    74 ;  thereupon   the   covenant  becomes   a  cov- 

Kimpton  v.  Walker,  9  Verm.  191.  enant  real.    Trull  v.  Eastman,  3  Met.  121 ; 

■^  Spencer's  case,  Moore,  159  ;  Piatt  on  Somes  v.  Skinner,  8  Pick.  52. 

Cov.  470 ;  12  East,  469,  per  Ld.  Ellenbor-  i^  jordain  v.  Wilson,  4  B.  &  Aid.  266. 

ough ;  Isteed  v.  Stonely,  1  And.  82.  So  a  covenant  by  the  grantor  of  a  niill- 

*  Shep.  Touchst.  161  ;  Marston  r.  pond  and  land,  to  draw  off  the  water  six 
Hobba,  2  Mass.  433;  Wiltby  v.  Mount-  days  in  the  year,  upon  request,  is  a  cov- 


216  LAW   OF   EVIDENCE.  [PART  IV. 

land  granted  is  bounded  ;  ^  not  to  establish  or  permit  another  mill 
on  the  same  stream,  which  propels  the  mill  granted ;  ^  not  to 
erect  a  building  on  grounds  dedicated  by  the  covenantor  to  the 
public,  in  front  of  lands  conveyed  by  the  covenantor  to  the  as- 
signor of  the  plaintiff;^  or  to  use  the  land  in  a  particular  man- 
ner, for  the  advantage  of  the  grantor ;  ^  and  the  like.  When  any 
of  these  covenants  are  broken,  after  the  land  has  been  conveyed 
to  the  assignee,  the  general  rule  is,  that  he  alone  has  the  right 
to  sue  for  the  damages ;  but  if,  by  the  nature  and  terms  of  the 
assignment,  the  assignor  is  bound  to  indemnify  the  assignee 
against  the  breach  of  such  covenants,  it  seems  that  the  assignor 
may  sue  in  his  own  name.^ 

§  241.  To  prove  a  breach  of  the  covenant  of  seisin,  it  is  necessary 
to  show,  that  the  covenantor  was  not  seised  in  fact ;  for  this  cove- 
nant is  satisfied  by  any  seisin  in  fact,  though  it  were  by  wrong, 
and  defeasible.^  But  though  the  covenantor  was  in  possession  of 
the  land  at  the  time  of  the  conveyance,  yet  if  he  did  not  exclusive- 
ly claim  it  as  his  own,  the  covenant  is  broken.'''  So,  if  there  was  a 
concurrent  seisin  by  another,  as  tenant  in  common  ;^  or,  if  there 
was  an  adverse  seisin  of  a  part  of  the  land,  within  the  boundaries 
described  in  the  deed.^  But  if  the  possession  by  a  stranger  was 
not  adverse,  it  is  no  breach.^'' 

enant  real.     Morse  v,  Aldrich,  19  Pick,  aj^ainst  that  of  his  grantor.     Gilman  v. 

449.  Haven,  11  Cush.  330.] 

1  Dailey  v.  Beck,   6  Penn.  Law  Jour.  ^  Marston  v.  Hobbs,  2  Mass.  433  ;  Bearce 
383.  V.  Jackson,  4  Mass,  408  ;  Tworably  v.  Hen 

2  Norman  v.  Wells,  17  Wend.  136.  ley.  Id.  441  ;  Prescott  v.  Trueman,  Id.  627  : 
'^  Watertown  v.  Cowen,  4  Paige,  .510.     Chapel  v.  Bull,    17    Mass.    213;  Wait  v. 

And  see  Mann  r.  Stephens,  10  Jur.  650,  Maxwell,  5  Pick.  217;  Wheaton  w.  East 

S.  P.  5  Yerg.  41  ;  Willard  v.   Twitchcll,   1   N 

*   Hemminway  v.  Fernandez,   13  Sim.  Hamp.  177;  Backus  ».  McCoy,  3  Ohio  R 

228.  220.     But  see  Richardson  r.  Dorr,  5  Verm 

6  Griffin  r.   Fairbrother,    1    Fairf.    81;  21  ;  Lackwood  v.  Sturdevant,  6  Conn.SSo 

Bickford  v.  Paige,  2  Mass.  460  ;  Kane  v.  And  see,  as  to  this  covenant,  4  Cruise's 

Sanger,  14  Johns.  89  ;  Niles  v.  Sawtel,  7  Dig.  tit.  32,  ch.  26,  §  48,  note  (Grecnlcaf 's 

Mass.  444.     [A  grantee  in  a  deed  cannot  edit.).     If  the  grantor's  seisin  is  aileged  to 

maintain  an  action  upon  a  covenant  of  have  been  defeated  by  an  official  sale  for 

warranty  therein,  unless  there  has  been  an  the   non-payment  of  taxes,   the   plaintiff 

actual  eviction,  or  what  is,  in  law,  equiva-  must  prove  the  validity  of  the  assessment 

lent  thereto.     Thus,  where  a  grantee  in  a  and  sale,  with  the  same  strictness  as  if  he 

deed  containing  a  covenant  of  warranty  im-  were  the  purchaser  \inder  the  sale,  enfor- 

mediatcly  mortgages  back  the  estate  to  his  cing  his  title  in  an  ejectment.     Kennedy  v. 

grantor,  and  afterwards  gives  him  posses-  Newman,  1  Sandf  187. 

sion  under  the   mortgage,   becoming   his  ''  Wheeler  v.  Hatch,  3  Fairf.  389. 

tenant,  he  cannot  maintain  an  action  on  *  Sedgwick  p.  Hollenback,  7  Johns.  376. 

the  covenant  of  warranty  in  the  deed  to  ^  Wilson  v.  Forbes,  2  Dcv.  30.     But  it 

himself,  on  account  of  an  entry  and  ouster  is   not  necessary   to   prove    an    eviction, 

by  one   having  an  older  and  better  title  Bird  v.  Smith,  3  Eng.  368. 

than  his  grantor,  because  such  entry  and  i*  Commonwealth  v.  Dudley,  10  Mass 

ouster  are  not  against  his  possession,  but  403. 


PART  IV.] 


COVENANT. 


217 


§  242.  The  covenant  oi freedom  from  encumbrances  is  proved  to 
have  been  broken,  by  any  evidence,  showing  that  a  third  person 
has  a  right  to,  or  an  interest  in,  the  land  granted,  to  the  diminu- 
tion of  the  value  of  the  land,  though  consistent  with  the  passing 
of  the  fee  by  the  deed  of  conveyance.^  Therefore,  a  public  high- 
way over  the  land  ;  ^  a  claim  of  dower ;  ^  a  private  right  of  way  ;  * 
a  lien  by  judgment  ;^  or  by  mortgage,  made  by  the  grantor  to  the 
grantee,^  or  any  mortgagee,  unless  it  be  one  which  the  convenan- 
tee  is  bound  to  pay ;  '^  or  any  other  outstanding  elder  and  better 
title ;  ^  is  an  encumbrance,  the  existence  of  which  is  a  breach  of 
this  covenant.  In  these  and  the  like  cases,  it  is  the  existence  of 
the  encumbrance  which  constitutes  the  right  of  action  ;  irrespective 
of  any  knowledge  on  the  part  of  the  grantee,  or  of  any  eviction  of 
him,  or  of  any  actual  injury  it  has  occasioned  to  him.  If  he  has 
not  paid  it  off,  nor  bought  it  in,  he  will  still  be  entitled  to  nomi- 
nal damages,  but  to  nothing  more  ;  ^  unless  it  has  ripened  into  an 
indefeasible  estate ;  in  which  case  he  may  recover  full  damages.^^ 
It  is  not  competent  for  the  plaintiff  to  enhance  the  damages  by 
proof  of  the  diminished  value  of  the  estate,  in  consequence  of  the 


1  Prescott  V.  Trneman,  4  Mass.  627, 
629,  per  Parsons,  C.  J.  See,  as  to  this 
covenant,  4  Cruise's  Dig.  tit.  32,  ch.  26, 
§  59,  note  (Greenleaf 's  ed.). 

2  Kellogg  V.  Ingersoll,  2  Mass.  97,  101  ; 
Pritcliard  v.  Atkinson,  3  N.  Hamp.  335  ; 
Hubbard  v.  Norton,  10  Conn.  431. 

3  4  Mass.  630.  Even  though  inchoate 
only.  Porter  v.  Noyes,  2  Greenl.  22 ; 
Shearer  iJ.  Ranger,  22  Pick.  447. 

*  Harlow  v.  Thomas,  15  Pick.  68; 
Mitchell  V.  Warner,  5  Conn.  497.  [And 
this  is  so  although  the  existence  of  the  way 
was  well  known  to  the  grantee  at  the  time 
of  the  purchase.  Butler  v.  Gale,  1  Wil- 
liams (Verm.)  739.] 

*  Jenkins  v.  Hopkins,  8  Pick.  346 ; 
Smith  V.  M'Campbell,  1  Blackf  100;  Hall 
V.  Dean,  13  Johns.  105. 

^  Bean  v.  Mayo,  5  Greenl.  94. 

7  Watts  V.  Welman,  2  N.  H.  458  ;  Tufts 
V  Adams,  8  Pick.  547  ;  Funk  v.  Voneida, 
11  S.  &  R.  109 ;  Stewart  v.  Drake,  4  Halst. 
139;   Wyman  w.  Ballard,  12  Mass.  304. 

*  Piescott  V.  Trueman,  4  Mass.  627 ; 
Chapel  V.  Bull,  17  Mass.  213,  220 ;  Pot- 
ter V.  Taylor,  6  Verm.  676 ;  Garrison  v. 
Sandford,  7  Halst.  261 

The  declaration  by  a  grantee,  by  deed  of 
bargain  and  sale,  against  his  grantor  for 
breach  of  the  covenant  of  freedom  from  en- 
cumbrance, by  the  existence  of  a  paramount 
title,  is  in  this  form  :  — 


" in  a  plea  of  covenant ;  for  that  the 

said  defendant,  on  the day  of by 

his  deed,  [;/  by  indenture  it  should  be  so  set 
forth,]  duly  executed,  acknowledged,  and 
recorded,  and  by  the  plaintiff  now  here 
produced  in  court,  for  a  valuable  consider- 
ation therein  mentioned,  bargained,  sold, 
and  conveyed  to  the  plaintiff  [here  describe 
the  premises]  to  have  and  to  hold  the  same 
with  the  appurtenances  to  the  plaintiff  and 
his  heirs  and  assigns  forever;  and  therein, 
among  other  things,  did  covenant  with  the 
plaintiff  (*)  that  the  said  premises  were 
then  free  from  all  encumbrance  whatsoever. 
Now  the  plaintiff  in  f;ict  says  that,  at  the 
time  of  making  the  said  deed,  the  premises 
aforesaid  were  not  free  from  all  encum- 
brance ;  but  on  the  contrary  the  plaintiff 
avers  that  at  the  time  of  making  said  deed, 
one  E.  F.  had  the  paramount  and  lawful 
right  and  title  to  the  same  premises;  by 
reason  whereof  the  plaintiff  has  been  obliged 
to  expend,  and  has  expended,  a  great  sum 
of  money,  to  wit,  the  sum  of in  extin- 
guishing the  said  paramount  and  lawful 
right  and  title  of  the  said  E.  F.  to  said 
premises." 

^  Ibid. ;  Delavergne  v.  Norris,  7  Johns. 
358;  Stanard  v.  Eldridge,  16  Johns  254; 
Bean  v.  Mayo,  5  Greenl.  94;  Wyman  v. 
Ballard,  12  Mass.  304. 

10  Chapel  V.  Bull,  17  Mass.  213. 


218 


LAW   OF  EVIDENCE. 


[part  IV. 


existence  of  the  encumbrance,  as,  for  example,  a  prior  lease  of  the 
premises,  unless  he  purchased  the  estate  for  the  purpose  of  a  re- 
sale, and  this  was  known  to  the  grantor  at  the  time  of  the  pur- 
chase.^ 

§  243.  The  covenant  for  quiet  enjoyment  goes  to  the  possession, 
and  not  to  the  title ;  and  therefore  to  prove  a  breach,  it  is  ordina- 
rily necessary  to  give  evidence  of  an  entry  upon  the  grantee,  or  of 
expulsion  from,  or  some  actual  disturbance  in  the  possession  ;  ^ 
and  this,  too,  by  reason  of  some  adverse  right  existing  at  the  time 
of  making  the  covenant,  and  not  of  one  subsequently  acquired.^ 
But  it  will  not  suffice  to  prove  a  demand  of  possession,  by  one 
having  title  ;  *  nor  a  recovery  in  ejectment ;  ^  or  in  trespass  ;  ^  un- 
less there  has  also  been  an  actual  ouster.  If,  however,  the  cove- 
nantor himself  enters  tortiously,  claiming  title,  it  is  a  breach.^ 

§  244.  The  covenant  of  warranty  extends  only  to  lawful  claims 
and  acts  ;  and  not  to  those  which  are  tortious ;  ^  and  it  is  restricted 
to  evictions  under  titles  existing  at  the  date  of  the  covenant.^     A 


1  Batchelder  v.  Sturgis,  .3  Cush.  201. 
[A  stipulation  in  a  deed  poll  that  the 
grantee,  his  lieirs,  and  assigns,  shall  erect 
and  perpetually  maintain  a  fence  between 
the  granted  premises  and  the  land  adjoin- 
ing, does  not  create  an  encumbrance  on 
the  granted  premises.  Parish  v.  Whitney, 
3  Gray,  516;  Plymouth  v.  Carver,  16 
Pick.  183.] 

2  Fraunces's  case,  8  Co.  89 ;  Anon.,  1 
Cora.  R.  228  ;  Waldron  v.  McCarty,  3 
Johns.  471 ;  Kortz  v.  Carpenter,  ,5  Johns. 
120  ;  Webb  v.  Alexander,  7  Wend.  281  ; 
Coble  V.  Welborn,  2  Der.  388.  And  see 
Safford  v.  Annis,  7  Greenl.  168;  2  Sugd. 
Vend.  514-522  (10th  edit.);  4  Cruise's  Dig. 
'it.  32,  ch.  26,  §  51,  note  (Greenleaf  sedit.). 

3  YA\is  V.  Welch,  6  Mass.  246  ;  Tisdale 
V.  Essex,  Hob.  34;  Hurd  v.  Fletcher,  1 
Dou^.  43  ;  Evans  v.  Vaughan,  4  B.  &  C. 
261  ;  Spencer  v.  Marriott,  1  B.  &  C.  457. 

The  declaration  by  a  grantee  against  his 
grantor,  for  breach  of  the  general  covenant 
for  quiet  enjoyment,  recites  the  convc^'ances, 
as  in  the  preceding  form,  as  far  as  this 
mark,  (*)  and  proceeds  as  follows  :  — 
—  "  that  the  plaintiff",  his  heirs  and  assigns, 
should  and  might  at  all  times  forever  there- 
after, peaceably  and  quietly  have,  hold, 
possess,  and  enjoy  said  premises,  without 
let,  suit,  denial,  hindrance,  molestation,  or 
interruption,  by  any  person  lawfully  claim- 
ing any  right,  title,  or  interest  in  the  same. 
Now  the  plaintiff  in  feet  says,  that  he  has 
not  been  permitted  so  to  possess  and  enjoy 
the  said  premises;  but  oi  the  contrary  he 


avers,  that,  after  the  making  of  said  deed, 

to  wit,  on  the day  of ,  one  E.  F., 

who,  at  the  time  of  making  said  deed,  had, 
and  ever  since,  until  the  molestation  of  the 
plaintiff  hereinafter  mentioned,  continued 
to  have  lawful  right  and  title  to  said  prem- 
ises, did  enter  into  the  same,  and  did  thence 
eject,  expel,  and  remove  the  plaintiff,  and 
hold  him  out  of  possession  of  the  same, 
contrary  to  the  form  and  effect  of  the  cov- 
enant aforesaid,"  &c. 

*  Cowan  V.  Silliman,  2  Dev.  46.  Nor, 
a  mere  forbidding  to  pay  rent.  Witchcot 
V.  Nine,  1  Brownl.  81.  And  see  Hodgskin 
a.  Queensborough,  Willes,  129. 

^  Kerr  v.  Shaw,  13  Johns.  236. 

^  Webb?;.  Alexander,  7  Wend.  281.  And 
see  Cushman  v.  Blanchard,  2  Greenl.  266. 

''  Sedgwick  v.  Hollenback,  7  Johns.  376  ; 
2  Sugd.  Vend.  512  (10th  edit.).  But  not 
if  the  entry  was  without  claim  of  title. 
Seddon  v.  Sen.ate,  13  East,  72 ;  Penn  v, 
Glover,  Cro.  El.  421.  [It  is  a  breach  if 
there  is  a  dispossession  by  one  having  su- 
perior title,  although  the  entry  is  not  made 
under  process.  Parker  v.  Dunn,  2  Jones, 
Law  (N.  C),  203.] 

8  4  Cruise's  Dig.  tit.  32,  ch.  26,  §  51, 
note  (Greenleaf 's  ed.) ;  Vaugh.  122;  2 
Sugd.  Vend.  510,  511  (10th  edit);  Dud- 
ley V.  Follett,  3  T.  R.  587. 

9  Ellis  V.  Welch,  6  Mass.  246. 

Where  the  assignee  of  the  g^atitee  sues  the 
grantor  for  a  breach  of  the  covenant  of  war- 
ranty, by  an  eviction,  the  declaration  will 
be  in  this  form  :  —  "In  a  plea  of  covenant ; 


PART  IV.] 


COVENANT. 


219 


breach  of  this  covenant  is  proved  only  by  evidence  of  an  actual 
ouster  or  eviction  ;  but  it  need  not  be  with  force ;  for  if  it  appears 
that  the  covenantee  has  quietly  yielded  to  a  paramount  title, 
whetlier  derived  from  a  stranger  or  from  the  same  grantor,  either 
by  giving  up  the  possession,  or  by  becoming  the  tenant  of  the 
rightful  claimant,  or  has  purchased  the  better  title,^  it  is  sufficient. 
So,  if  he  has  been  held  out  of  possession,  by  one  in  actual  posses- 
sion under  a  paramount  title,  at  the  time  of  sale,  it  is  said  to  be  a 
breach.^  So,  a  formal  entry  by  a  mortgagee,  for  foreclosure,  though 
made  under  a  statute,  which  does  not  require  that  the  possession 
of  the  mortgagee  should  be  continued,  is  a  breach. ^  And  if  the 
grantor  covenants  against  all  encumbrances,  except  a  certain  mort- 
gage, which  he  engages  to  discharge,  and  also  covenants  generally 
to  warrant  the  premises  against  the  lawful  claims  of  all  persons, 


for  that  the  said  defendant  heretofore,  to 

wit,  on  the day  of ,  by  his  deed, 

by  him  duly  executed,  acknowledged,  and 
recorded,  which  deed,  not  being  in  the 
possession,  custody,  or  control  of  the  plain- 
tiff, he  is  unable  to  produce  in  court,  for  a 
valuable  consideration  therein  mentioned, 
bargained,  sold,  and  conveyed  to  one  J.  S., 
a  certain  parcel  of  land,  [clescribing  it,\  to 
hold  the  same  ^vith  the  appurtenances,  to 
him  the  said  J.  S.,  and  his  heirs  and  as- 
signs forever  ;  and  in  and  by  said  deed  the 
said  defendant,  among  other  things,  cov- 
enanted with  the  said  J.  S.,  and  his  heirs 
and  assigns,  to  warrant  and  defend  the 
same  premises  to  the  said  J.  S.  and  his 
heirs  and  assigns  forever,  against  the  law- 
ful claims  and  demands  of  all  persons. 
And  the  said  J.  S.  afterwards,  on  the  same 
day,  lawfully  entered  into  said  premises, 
and  by  virtue  of  said  deed  became  lawfully 
seised  of  the  same ;  and  being  so  seised, 
the  said  J.  S.  afterwards,  to  wit,  on  the 

day  of ,  by  his  deed,  by  him  duly 

executed,  acknowledged,  and  recorded,  and 
now  here  by  the  plaintiff  produced  in  court, 
for  a  valuable  consideration  therein  men- 
tioned, bargained,  sold,  and  conveyed  the 
same  premises  to  the  plaintiff,  to  hold  the 
same,  with  the  appurtenances,  to  the  plain- 
tiff, and  his  heirs  and  assigns  forever ;  by 
force  of  which  deed  the  plaintiff,  afterwards 
and  the  same  day,  lawfully  entered  into 
the  same  premises  and  became  lawfully 
seised  thereof  accordingly.  But  the  plain- 
tiff in  fact  says,  that  tlie  said  defendant 
has  not  warranted  and  defended  the  said 
premises  to  the  plaintiff,  as  by  his  said 
covenant  he  was  bound  to  do  ;  but  on  the 
contrary  the  plaintiff  avers  that  one  E.  F., 
lawfully  claiming  the  same  premises  by  an 


elder  and  better  title,  afterwards  by  the 

consideration  of  the  justices   of  the 

court,  begun  and  holden  [here  describe  the 
term,  Sfc]  recovered  judgment  against  the 
plaintiff  for  his  seisin  and  possession  of 
said  premises,  and  for  his  costs,  and  after- 
wards, to  wit,  on  the day  of ,  un- 
der and  by  virtue  of  a  writ  of  execution 
duly  issued  upon  said  judgment,  the  said 
E.  F.  lawfully  entered  into  said  premises, 
and  thereof  evicted  the  plaintiff  and  still 
lawfully  holds  him  out  of  the  same." 

The  breach  may  be  assigned  more  gener- 
ally, as  an  ouster,  in  the  following  form  :  — 
"  But  on  the  contrary,  the  plaintiff  avers 
that  one  E.  F.,  lawfully  claiming  the  same 
premises  by  an  elder  and  better  title,  af- 
terwards, to  wit,  on  the day  of , 

lawfully  entered  into  the  same  premises, 
and  ousted  the  plaintiff  thereof,  and  still 
lawfully  holds  him  out  of  the  same." 

1  Emerson  v.  Propr's  of  JVIinot,  I  Mass. 
464  ;  Kelly  v.  Dutch  Church  of  Schenec- 
tady, 2  Hill,  N.  Y.  Rep.  105  ;  Hamilton  v. 
Cutts,  4  Mass.  349 ;  Sprague  v.  Baker,  17 
Mass.  586  ;  Clarke  v.  McAnulty,  3  S.  &  R. 
364 ;  Mitchel  v.  Warner,  5  Conn.  497 ; 
Stewart  v.  Drake,  4  Halst.  139 ;  Rickert 
V.  Snyder,  9  Wend.  416  ;  Tufts  v.  Adams, 
8  Pick.  547  ;  Bigelow  v.  Jones,  4  Mass.  512. 
See  further,  4  Kent,  Comra.  471  ;  10  Ohio 
R.  by  Wilcox,  pp.  330  -  332,  note.  If  the 
covenantee  yields  peaceably  to  a  dispos- 
session, the  burden  of  proof  is  on  him  to 
show  that  the  dispossession  was  by  one  hav- 
ing a  better  title.     4  Mass.  349. 

2  Wittv  V.  Hightower,  12  S.  &  M.  478. 

3  White  V.  Whitney,  3  Met.  81.  See 
also  Burrage  v.  Smith,  16  Pick.  56;  Nor- 
ton V.  Babcock,  2  Met.  510;  Ingersoll  ». 
Jackson,  9  Mass.  495. 


220  LAW   OF  EVIDENCE.  [PART  IV. 

he  is  liable  on  the  latter  covenant,  if  the  grantee  is  obliged  himself 
to  remove  this  encumbrance.^  A  judgment  in  ejectment,  recov- 
ered by  a  stranger,  against  the  covenantee,  and  an  entry  under 
it,  with  proof  that  the  covenantor  had  due  notice  of  the  pendency 
of  the  action,  and  was  requested  by  the  covenantee  to  defend  it,  is 
also  sufficient  evidence  of  a  breach  of  this  covenant.^  So,  if  the 
grantor  subsequently  conveys  to  a  stranger,  who  enters  without 
notice  of  the  prior  deed,  it  is  a  breach.^ 

§  245.  A  covenant  by  a  lessee,  against  assigning  and  underlet- 
ting, is  not  broken  by  any  involuntary  transfer  of  the  possession , 
as,  if  it  be  sold  by  a  sheriff,  on  execution,  or  by  assignees  in  bank- 
ruptcy, or  by  an  executor ;  ^  unless  the  assignment  is  effected  by 
fraud  of  the  lessee,  as,  by  confessing  judgment,  to  the  intent  that 
the  creditor  may  seize  the  premises  in  execution .^  Ordinarily, 
therefore,  the  plaintiff  must  prove  a  transfer  of  the  possession  bj 
some  voluntary  act  of  the  defendant.  Evidence  of  the  mere  fact, 
that  a  stranger  is  in  possession  of  the  land,  is  not  alone  sufficient 
proof  of  a  breach  of  this  covenant ;  ^  but  if  the  stranger  claims  to 
hold  as  under-tenant  of  the  defendant,  it  has  been  held  sufficient 
prima  facie,  to  maintain  the  allegation  on  the  part  of  the  plaintiff.' 

§  245  a.  Upon  a  covenant  to  repair,  and  issue  joined  on  a  gener 
al  traverse  of  the  breach,  the  plaintiff  must  prove  the  actual  statft 
of  the  premises,  so  as  to  show  that  they  were  substantially  out  of 
repair ;  and  in  doing  this,  he  will  be  confined  to  the  matters  ex- 
pressly alleged  as  constituting  the  breach.  If  the  covenant  is  gen- 
eral, to  repair  and  keep  in  repair,  the  tenant  is  not  obliged  to  put 
in  new  floors,  or  the  like,  but  only  to  repair  the  old ;  and  it  is  suf- 
ficient if,  by  a  timely  expenditure  of  money,  he  keep  the  premises 
in  substantial  repair,  and,  as  nearly  as  may  be,  in  the  same  state 
in  which  they  were  at  the  time  of  the  demise.^     He  is  bound, 

1  Bemis  v.  Smith,  10  Met.  194.  though  it  is  offered  to  him  on  moderate 

2  Hamilton  v.  Cutts,  4  xMass.  349  ;  Pres-  terms.  Miller  v.  Halsey,  2  Green  (N.  J.) 
cott  V.  Trueman,  lb.  627  ;  Terrell  v.  Alder,  Rep.  48  ;  Clarke  v.  McAnulty,  3  S.  &  R. 
8  Humph.  44.     In  such  case,  an  actual  364. 

ouster  by  writ  of  possession  has  been  held  *  Doe  v.  Carter,'  8  T.  R.  57  ;  Doe  v.  Bea- 

immaterial.    Williams?;.  Wetherbce,  1  Aik-  van,  3  M.  &  S.  3.53  ;  Seers  v.  Hind,  1  Ves. 

en,  R.  233.     The  notice  of  the  suit  may  295  ;  [Great  Pond  Co.  v.  Buzzell,  39  Maine 

be  verbal.     Collingwood  v.  Irwin,  3  Watts,  (4  Heath),  1 73.] 

306;  Miner  v.  Clark,  15  Wend.  425.     Af-  &  Doe  v.  Carter,  8  T.  R.  57.     And  see, 

ter  which,  it  seems  the  covenantee  is  not  on   this   covenant,  Piatt  on  Cov.  ch.  12, 

bound   to  defend.      Jackson  v.  Marsh,  5  pp.  404  -  443. 

Wend.  44.  e  jy^^  „.  Payne,  1  Stark.  R.  86. 

8  Curtis  V.  Deering,  3  Fairf.  499.     The  7  Uoe  v.  Rickarby,  5  Esp.  4. 

covenantee  is  not  bound  to  buy  in  an  out-  »  Soward  v.  Leggatt,  7  C.  &   P.  613  , 

Btanding  paramount  title  or  encumbrance,  Harris  v  Jones,  1  M.  &  Rob.  173;  Stan^ 


PART  IV.]  COVENANT.  221 

however,  under  a  general  covenant  "  to  repair,  uphold,  and  main- 
tain "  a  house,  to  keep  up  the  painting  of  inside  doors,  shutters, 
&c. ;  1  and  also  to  rebuild  it  if  destroyed  by  fire,  unless  such  cas- 
ualty is  excepted  in  the  covenant,  either  expressly  or  by  implica- 
tion.2  Besides  proving  the  want  of  repair,  the  plaintiff  should  also 
prove  the  damages  thereby  sustained ;  which  is  usually  done  by 
the  evidence  of  surveyors,  carpenters,  &c.,  who  have  examined  the 
premises,  and  estimated  the  cost  of  putting  them  into  the  state  in 
which  the  tenant  ought  to  have  left  them.^  And  the  jury  may 
also  allow  the  owner  some  compensation  for  the  actual  loss  of 
use  or  profit  of  the  premises,  while  they  were  undergoing  such 
repairs.* 

§  246.  The  plea  of  non  est  factum,  to  a  declaration  on  an  inden- 
ture of  lease,  is  an  admission  of  the  plaintiff's  title  to  demise.^ 
And  generally  under  this  plea,  the  defendant  may  prove  that  the 
deed  was  fraudulent ;  ^  or  that  it  was  delivered  as  an  escrow  ;  "^  or, 
may  show  any  personal  incapacity,  such  as  lunacy,^  or  coverture ;  ^ 
and  after  production  of  a  counterpart,  executed  by  all  the  plain- 
tiffs, he  may  produce  the  demising  part,  to  prove  that  it  was  not 
executed  by  them  all.^^ 

§  247.  Wliere  issue  is  joined  on  a  plea  of  performance,  the  de- 
fendant assumes  the  burden  of  proof,  and  therefore  is  ordinarily 
entitled  to  open  and  close  the  case.^^ 

ley  V.  Towgood,  3  Bing.  N.  C.  4  ;  Gut-  »  Penley  v.  "Watts,  7  M.  &  "W.  601. 

teridge  v.  Munyard,  7  C.  &  P.  129;  1  M.  *  Wood  v.  Pope,  1  Bing.  N.  C.  467. 

&  Rob.  334.  5  Friend  v.  Eastabrook,  2  W.  Bl.  1152. 

1  Monk  V.  Noyes,  1  C.  &  P.  265.  ^  Anon.  Lofft,  R.  457. 

2  Bullock  V.  Dommitt,    6  T.   R.  650;  ^  S toy tes  u.  Pearson,  4  Esp.  255. 
Digby  V.  Atkinson,  4  Campb.  265  ;  Phil-  ^  Paulder  v.  Silk,  3  Campb.  126. 
lips  V.  Stephens,  16  Mass.  238;  Fowler  v.  ^  Lambart  v.  Atkins,  2  Campb.  272. 
Bott,  6  Mass.  63  ;  Weigall  v.  Waters,  6  l»  Wilson  v.  Woolfryes,  6  M.  &  S.  341. 
T.  R.  488  ;  Loader  v.  Kemp,  2  C.  &  P.  "  Scott  v.  Hull,  8  Conn.  296.    And  see 
875.  arOe,  Vol.  1,  §  74. 


222  LAW  OF  EVIDENCE.  [PART  IV 


CUSTOM    AND    USAGE. 

[•  §  248.  Custom  and  prescription  distinguished  and  defined. 

249.  Proofs  of  customs  and  usages. 

250.  Requisites  to  proof  of  local  custom. 

251.  Usage  of  trade  need  not  have  existed  immemorially. 

252.  Customs  and  usages  must  be  proved  by  evidence  of  facts,  by  witnesses  who 

have  had  frequent  and  actual  experience  of  the  custom  or  usage.] 

§  248.  Custom  is  unwritten  law,  established  bj  common  consent 
and  uniform  practice,  from  time  immemorial ;  and  it  is  local,  hav- 
ing respect  to  the  inhabitants  of  a  particular  place  or  district.  It 
differs  from  Prescription^  in  this,  that  prescription  is  a  personal 
right,  belonging  to  one  or  a  few  persons,  by  particular  designation, 
as,  for  example,  the  owners  of  a  certain  parcel  of  land.  The  term 
Usage,  in  its  broadest  sense,  includes  them  both  ;  but  is  ordinarily 
applied  to  trade  ;  designating  the  habits,  modes,  and  course  of 
dealing,  which  are  generally  observed,  either  in  any  particular 
branch  of  trade,  or  in  all  mercantile  transactions. 

§  249.  We  have  already  seen,^  that,  in  general,  when  a  local 
custom,  of  a  public  or  general  nature,  is  once  established  by  a 
judgment,  the  judgment  is  competent  evidence  of  the  existence  of 
the  custom,  in  all  other  cases,  though  the  parties  may  be  different. 
Hence  no  person  is  a  competent  witness  to  prove  a  local  custom, 
stated  on  the  record,  who  would  derive  a  benefit  from  its  estab- 
lishment.2  But  in  regard  to  the  proof  of  usages  in  any  particular 
trade,  persons  employed  in  jthe  particular  trade  are  held  compe- 
tent witnesses,  as  standing  indifferent ;  the  usage  in  question  gen- 
erally affecting  alike  both  their  rights  and  their  liabilities.  These 
usages,  also,  when  once  put  in  issue  and  found  by  a  jury,  are  af- 
terwards recognized  on  production  of  the  record ;  and  after  having 
been  frequently  proved,  in  the  course  of  successive  legal  investi- 
gations, they  are  taken  notice  of  by  the  courts,  without  further 

1  Ante,  Vol.  1,  §  405.  a  Ibid. 


PART  IV.]  CUSTOM  AND  USAGE.  223 

proof.i  They  are  not,  however,  permitted  to  have  effect,  when 
they  contravene  any  established  general  rule  of  the  law;  and 
therefore  evidence,  in  proof  of  any  such  usage,  is  ordinarily  inad- 
missible.^  The  general  law-merchant,  being  part  of  the  common 
law,  is  recognized  by  the  courts  without  proof.^ 

§  250.  In  proof  of  a  local  custom ,  it  must  be  shown  to  have  ex- 
isted from  time  immemorial ;  to  have  continued  without  any  in- 
terruption of  the  right,  though  the  possession  may  have  been 
suspended  ;  to  have  been  peaceably  acquiesced  in  ;  and  to  be  rea- 
sonable, certain,  consistent  with  law  and  with  other  acknowledged 
customs,  and  compulsory  on  all.*  The  existence  of  a  custom  in 
one  place,  is  not  admissible  in  proof  of  its  existence  in  another ; 
unless  where  the  custom  has  respect  to  some  general  subject  com- 
mon to  them  both,  to  which  it  is  merely  an  incident,  such  as  a 
general  tenure,  and  the  like.^  But  where  the  question  is  upon  the 
manner  of  conducting  a  particular  branch  of  trade  at  one  place, 
evidence  of  the  manner  of  conducting  the  same  branch  at  another 
place  is  admissible;  being  deemed  to  fall  within  the  exception 
to  the  rule,  as  it  concerns  a  matter,  in  its  nature  common  to  both 
places.^  So,  evidence  as  to  the  profits  of  mines,  or  the  right  to 
dig  turf  in  fenny  lands,  in  one  manor,  has  been  admitted  in  proof  of 
the  same  right  claimed  in  another,  the  subject  being  the  same.^ 

§  251.  But  in  regard  to  the  usage  of  trade,  it  is  not  necessary 
that  it  should  have  existed  immemorially ;  it  is  sufficient  if  it  be 
established,  known,  certain,  uniform,  reasonable,  and  not  contrary 
to  law.^     These  usages,  many  judges  are  of  opinion,  should  be 

1  Ante,  Vol.  1,  §5;  Smith  v.  Wright,  1  v.  E.  of  Granville,  Dav.  &  Mer.  614;  5 
Caines,  43  ;  Consequa  v.  Willing,  1  Pet.  Ad.  &  El.  701,  N.  S.  ;  Elwood  v.  Bullock, 
C.  C.  R.  230  ;  Thomas  v.  Graves,  1  Const.     6  Ad.  &  El.  383,  N.  S. 

Rep.  150,  [308.]  °  Furneaux  v.  Hutchins,  Cowp.  808  ;  D. 

2  Edie'i'.  The  East  India  Co.,  2  Burr,  of  Somerset  v.  France,  1  Stra.  654,  661, 
1216,  1222  ;  Homer  v.  Dorr,  10  Mass.  26,     662. 

29  ;  Lewis  v.  Thacher,  15  Mass.  431  ;  Hig-  ^  j^To^jig  „  Kennoway,  2  Doug.  510. 

gins  y.  Livermore,  14  Mass.  106  ;  Randall  ''  Dean,  &c.  of  Ely  v.  Warren,  2  Atk. 

V.  Rotcb,  12  Pick.  107  ;  Eager  f.  The  Atlas  189,  per  Ld.  Hardwicke. 

Ins.  Co.,  14   Pick.    141  ;  Perkins  v.  The  »  1  Bl.  Comm.  75  ;  Todd  v.  Reid,  4  B. 

Franklin  Bank,  21  Pick.  483;  Bryant  v.  &  Aid.  210  ;  CoUings  v.  Hope,  3  Wash. 

Commonwealth  Ins.  Co.,  6  Pick,  131  ;  The  150  ;  Rapp  v.  Palmer,  3  Watts,  178  ;  Trott 

Reeside,  2  Sumn.   568 ;  Bolton  v.   Colder,  v.  Wood,  1  Gall.  443  ;  Stiiltz  v.  Dickey,  5 

1    Watts,    360 ;    Newbold    v.    Wright,   4  Binn.  287 ;  AVinthrop  v.  Union  Ins.  Co., 

Rawle,  195;  Stoever  v.  Whitman,  6  Binn.  2    Wash.   C.  C.  R.  7;    United  States  v. 

417  ;  Bro\vn  v.  Jackson,  2  Wash.  C.  C.  R.  M'Daniel,  7  Pet.  1 ;  Lowry  v.  Russell,  8 

24  ;  Prescott  v.  Hubbell,  1  McCord.  94.  Pick.   360  ;  Parrott  v.  Thacher,   9  Pick. 

3  2  Burr.  1216,  1222.  426  ;  Stevens  v.  Reeves,  Id.  198  ;  Thomas 
*  1  Bl.  Comm.'76  -  78.     And  see  Freary  v.  Graves,  1  Const.  Rep.  150,  [308] ;  Desha 

V.  Cook,  14  xMass.  488;  Clayton  v.  Corby,     v.  Holland,  12  Ala.  513  ;  [Commonwealth 
8  Jur.  212  ;  2  Ad.  &  El.  813,  N.  S. ;  Carr     v.  Doaue,  1  Cash.  611.] 
V  Foster,  3  Ad.  &  El.  581,  N.  S     Hilton 


224 


LAW   OF  EVIDENCE. 


[part  IV. 


sparingly  adopted  by  the  courts  as  rules  of  law,  as  they  are  often 
founded  in  mere  mistake,  or  in  the  want  of  enlarged  and  compre- 
hensive views  of  the  full  bearing  of  principles.^  Their  true  office  is, 
to  interpret  the  otherwise  indeterminate  intentions  of  parties,  and 
to  ascertain  the  nature  and  extent  of  their  contracts,  arising  not 
from  express  stipulation,  but  from  mere  implications  and  pre- 
sumptions, and  acts  of  a  doubtful  and  equivocal  character;  and 
to  fix  and  explain  the  meaning  of  words  and  expressions  of  doubt- 
ful or  various  senses.^  On  this  principle,  the  usage  or  habit  of 
trade  or  conduct  of  an  individual,  which  is  known  to  the  person 
who  deals  with  him,  may  be  given  in  evidence  to  prove  what  was 
the  contract  between  them.^ 


1  2  Sumn.  R.  377,  per  Story,  J. ;  Hone 
V.  Mutual  Safety  Ins.  Co.,  1  Sandf.  S.  C. 
R.  137. 

2  TheReeside,  2  Sumn.  569;  Macomber 
V.  Parker,  13  Pick.  182  ;  Shaw  v.  Mitchell, 
2  Met.  65  ;  Coit  v.  Commercial  Ins.  Co.,  7 
Johns.  385  ;  Harris  v.  Nicholas,  5  Munf. 
483 ;  Allcgre  v.  Maryland  Ins.  Co.,  2  G.  & 
J.  136.  See  also  ante,  Vol.  1,  §  292  ;  Pow- 
ley  V  Walker,  5  T.  R.  373  ;  Roe  v.  Char- 
nock,  Peake's  Cas.  5  ;  Rex  v.  Navestock, 
6  Burr.  719  (Set.  Cas.).  Evidence  of 
usage  is  also  admissible  to  establish  a  right 
above  and  beyond  the  contract ;  even 
though  the  contract  is  by  deed.  Wiggles- 
worth  V.  Dallison,  1  Doug.  201. 

2  Loring  v.  Gurney,  5  l^ick.  15  ;  Naylor 
T.  Semmcs,  4  G.  &  J.  274  ;  Noble  v.  Ken- 
noway,  2  Doug.  510;  [Turner  v.  Yates, 
16  How.  U.  S.  14  ;  Barrett  v.  Williamson, 
4  McLean,  597  ;  Baxter  v.  Leland,  1  Blatch. 
Ct.  Ct.  526 ;  Hunt  v.  Carlisle,  1  Gray,  257  ; 
,  Fisher  v.  Sargent,  10  Cush.  250  ;  Warren 
'  Bank  v.  Suffolk  Bank,  lb.  586  ;  Potter  v. 
Morland,  3  Cush.  384  ;  Clark  v.  Baker,  11 
Met.  188  ;  Mixer  v.  Coburn,  lb.  559  ;  Put- 
nam V.  Tillotson,  13  Met.  517  ;  Macv  v. 
Whaling  Ins.  Co.,  9  lb.  354  ;  Baker  v.  A"tlas 
Bank,  lb.  1 82  ;  Mussey  v.  Eagle  Bank,  lb. 
80&;  Cliicopee  Bank  v.  Eager,  lb.  583; 
Bradford  v.  Drew,  5  lb.  188;  Perkins  v. 
Jordan,  35  Maine,  23  ;  Farnsworth  v.  Chase, 
19  N.  H.  5.34;  Knowles  v.  Dow,  2  Foster 
(N.  H.)  387  ;  lb.  71 ;  Nichols  v.  DeWolf,  1 
Rhode  Island,  277  ;  Leach  v.  Beardslee,  22 
Conn.  404 ;  Outwater  v.  Nelson,  20  Barb. 
29;  Wall  v  East  River  Ins.  Co.,  3  Duer 
(N.  Y.)  264  ;  Steward  v.  Scuddcr,  4  Zabr. 
96  ;  Meighen  v.  Bank,  25  Penn.  State  R.  (1 
Casey)  288;  lb.  411  ;  Foley  v.  Mason,  6 
Md.  37  ;  Merchants',  &c.  Ins.  Co.  v.  Wilson, 
2  lb.  217;  Fulton  Ins.  Co.  v.  Milner,  23 
Ala.  420;  Inglebright  v.  Hammond,  19 
Ohio.  337  ;  Campbell  v.  Hewlitt,  12  Eng. 
Law  &  Eq.  375  ;  Moore  v.  Campbell,  26  lb. 


522  ;  Cuthbert  v.  Gumming,  30  lb.  604 ; 
Wigglesworth  v.  Dallison,  1  Smith's  Lead- 
ing Cases  (ed.  1844),  405  (*300)  and  notes. 
[*  The  usages  of  any  pai'ticular  trade,  such 
as  are  uniform  or  general,  are  presumed 
to  be  familiar  to  all  persons  having  trans- 
actions in  that  trade  or  business  ;  and  all 
parties  making  contracts  upon  any  subject, 
leave  such  incidents  as  are  presumed  to  be 
familiar  to  both  parties,  and  in  regard  to 
which  there  cannot  ordinarily  be  any  mis- 
understanding, to  implication  merely.  — 
But  where  the  usage  or  custom  is  resorted 
to  for  the  purpose  of  controlling  the  gen- 
eral principles  and  obligations  of  tlic  law  of 
contract,  there  is  no  doubt  of  the  necessity 
of  showing  its  notoriety,  as  well  as  its  rea- 
sonableness and  justice.  The  latter  qual- 
ities are  generally  supposed  to  be  suffi- 
ciently shown  by  the  general  acquiescence 
of  the  public  in  the  usage.  2  Redfield  on 
Railways,  118-121.]  A  usage  among 
manufacturing  corporations  to  give  au 
honorable  discharge  to  an  operative  who 
has  worked  faithfully  with  them  for  twelve 
months  and  has  given  a  fortnight's  notice 
of  an  intention  to  leave,  whereby  such  op- 
erative may  obtain  employment  in  other 
mills  at  the  same  place,  does  not  oblige 
those  coi'porations  to  give  sucli  discharge 
in  all  cases  where  such  conditions  are 
complied  with.  The  giving  of  such 
a  discharge  is  a  matter  of  judgment 
and  discretion  with  the  corporation. 
Thurlston  v.  Suffolk  Man.  Co.,  10  Cush. 
376. 

A  policy  of  insurance  which  describes 
the  risk  as  a  "  machine  shop,  a  watchman 
kept  on  the  premises,"  does  not  rc(iuirc  a 
watchman  to  be  kept  there  constantly,  but 
only  at  such  times  as  men  of  ordinary  care 
and  skill  in  like  business  keep  a  watch- 
man on  their  premises  ;  and  the  usage  of 
similar  establishments,  in  this  respect,  may 
bo  shown  to  explain  wiiat  is  ordinary  care 


PART  IV.] 


CUSTOM  AND  USAGE. 


225 


§  252.  Both  customs  and  usages  must  be  proved  hy  evidence  of 
facts,  not  of  mere  speculative  opinions  ;  and  by  witnesses  who  have 
had  frequent  and  actual  experience  of  the  custom  or  usage,  and 
do  not  speak  from  report  alone.^  The  witnesses  must  speak  as  to 
the  course  of  the  particular  trade  ;  they  cannot  be  examined  to 
show  what  is  the  law  of  that  trade .^    And  though  a  usage  is  found- 


and  skill.  Crocker  v.  People's,  &c.  Ins. 
Co.,  8  Cush.  79. 

A  usage  at  an  inn  for  the  guests  to 
leave  their  money  and  valuables  at  the  bar 
or  witli  the  keeper  of  the  house,  as  a  con- 
dition precedent  to  the  liability  of  the  inn- 
keeper for  the  loss  thereof,  is  not  binding 
upon  a  guest,  unless  he  has  actual  knowl- 
edge or  notice  of  it ;  and  whether  he  lias 
such  knowledge  or  notice,  is  a  question  of 
fact  for  the  jury.  Berkshire  Woollen  Co. 
V.  Proctor,  7  Cush.  417. 

A  usage,  which  shows  when  a  voyage  is 
terminated  so  far  as  relates  to  the  payment 
of  premium  notes,  is  not  applicable  to  show 
when  a  voyage  terminates,  with  reference 
to  the  payment  of  losses.  Meigs  v.  Mutu- 
al, &c.  Ins.  Co.,  2  Cush.  439.  Nor  can  a 
usage  among  the  owners  of  vessels  at  par- 
ticular ports  to  pay  bills,  drawn  by  mas- 
ters for  supplies  furnished  to  their  vessels 
in  foreign  ports,  bind  them  as  acceptors  of 
6uch  bills.  Bowen  v.  Stoddard,  10  Met. 
629.  Nor  can  a  general  usage,  and  not 
the  usage  of  any  particular  place,  or  trade, 
or  class  of  dealers,  or  course  of  dealing,  l)C 
given  in  eWdence  to  control  the  rules  of 
law.  Strong  v.  Bliss,  6  Met.  393.  No 
usage  and  no  agreement,  tacit  or  express, 
of  the  parties  to  a  promissory  note,  as  to 
presentment,  demand,  and  notice,  will  ac- 
celerate the  time  of  payment,  and  bind  the 
maker  to  pay  it  at  an  earlier  day  than  that 
■which  is  fi.Ked  by  the  law  that  applies  to 
the  note.  Mechanics*  Bank,  &c.  v.  Mer- 
chants' Bank,  &c.,  6  Cush.  13 ;  Adams  v. 
Otterback,  15  How.  U.  S.  539  ;  Bowen  v. 
Newell,  4  Selden  (N.  Y.)  190;  2  Duer, 
584.  Nor  can  custom  or  usage  ever  be 
given  in  evidence,  to  vary  or  control  an 
express  contract.  Evans  v.  flyers,  25 
Pcnn.  State  R.  (1  Casey)  114;  Linsley  y. 
Lovely,  26  Vt.  (3  Deane)  123;  Swamp- 
scott  Machine  Co.  v.  Partridge,  5  Poster 
(N.  H.)  369;  Wadsworth  v.  Allcott,  2 
Selden  (N.  Y.)  64;  Dixon  v.  Dunham,  14 
111.324.]  [*In  the  case  of  Humfrey  v. 
Dale,  7  El.  &  Bl.  266,  in  regard  to  the 
necessity  of  relaxing  the  rule  of  the  admis- 
sibiKty  of  oral  evidence  to  explain  the 
import  of  commercial  terms  and  memoran- 
da in  written  contracts  between  merchants 
and  business  men,  Lord  Campbell,  Ch.  J. 
said :  "  The  only  remaining  question  is, 

VOL.   II.  15 


having  stated  a  purchase  for  a  third  per- 
son as  principal,  is  there  evidence  on  which 
they  themselves  can  be  made  liable  1  Now 
neither  collateral  evidence,  nor  the  evidence 
of  a  usage  of  trade,  is  receivalile  to  prove 
anything  which  contradicts  the  terms  of  a 
written  contract ;  but  subject  to  this  con- 
dition both  may  be  received  for  certain 
purposes.  Here  the  plaintiff  did  not  seek, 
by  the  evidence  of  usage,  to  contradict 
what  the  tenor  of  the  note  primarily  im- 
ports, namely,  that  this  was  a  contract 
which  the  defendants  made  as  brokers. 
The  evidence,  indeed,  is  based  on  this. 
But  the  plaintiff  seeks  to  show  that,  accord- 
ing to  the  usage  of  the  trade,  and  as  those 
concerned  in  the  trade  understand  the 
words  used,  they  imported  something  more, 
namely,  that  if  the  buying  broker  did  not 
disclose  the  name  of  his  principal,  it  might 
become  a  contract  with  him  if  the  seller 
pleased.  The  principle  on  which  evidence 
is  admissible  is,  that  the  parties  have  not 
set  down  on  paper  the  whole  of  their  con- 
tract in  all  its  terms,  but  those  only  which 
were  necessary  to  be  determined  in  the 
particular  case  by  specific  agreement,  and 
which  of  course  might  vary  infinitely, 
leaving  to  implioation  and  tacit  under- 
standing all  those  general  and  unvarying 
incidents  which  an  uniform  usage  would 
annex,  and  according  to  which  they  must 
in  reason  be  understood  to  contract,  unless 
they  expressly  exclude  them.  To  fall  with- 
in the  exception,  therefore,  of  repugnancy, 
the  incident  must  be  such  as,  if  expressed 
in  the  written  contract,  would  make  it  in- 
sensible or  inconsistent.  It  is  the  busi- 
ness of  courts  reasonably  to  slia])e  these 
rules  of  evidence  so  as  to  make  them  suit- 
able to  the  habits  of  mankind,  and  such  as 
are  not  likely  to  exclude  the  actual  facts 
of  the  dealings  between  parties  when  they 
are  to  determine  on  the  controversies  which 
grow  out  of  them.  See  1  Redfield  oq 
Railways  127  -  129.] 

1  Edie  V.  E.  Ind.  Co.,  2  Burr.  1228,  per 
Wilmot,  J. ;  Savill  v.  Barchard,  4  Esp.  54 
per  Ld.  Kenyon  ;  Austin  v.  Taylor.  2  Ohio 
R.  282. 

2  Ruan  V.  Gardiner,  1  Wash.  C.  C.  R. 
145  ;  Winthrop  v.  Union  Ins.  Co.,  2  Wash. 
C.  C.  R.  7 ;  Austin  v.  Taylor,  2  Ohio  R 
282. 


226 


LAW   OF  EVIDENCE. 


[part  IV. 


ed  on  the  laws  or  edicts  of  the  government  of  the  country  where  it 
prevails,  yet  still  it  may  be  proved  by  parol.^  It  has  also  been 
held,  that  the  testimony  of  one  witness  alone  is  not  sufficient  to 
establish  a  usage  of  trade,  of  which  all  dealers  in  that  line  of  trade 
are  bound  to  take  notice  .^ 


1  Livingston  v.  The  Maryland  Ins.  Co., 
7  Cranch,  500,  539 ;  Drake  v.  Hudson,  7 
H.  &  J.  399. 

2  Wood  V.  Hickok,  2  Wend.  501  ;  Par- 
rott  V.  Thacher,  9  Pick.  426 ;  Thomas  v. 
Graves,  1  Const.  Rep.  150,  [308.]  The 
testimony  of  one  witness  is  proof  of  com- 
mercial usage,  if  he  has  full  means  of 
knowledge,  and  his  testimony  is  explicit 
and  satisfactory.  By  Foot,  J.  Vail  v. 
Bice,  1    Selden  (N.  Y.)  155.    The  testi- 


mony of  one  of  the  directors  of  an  insur- 
ance company  as  to  the  practice  of  the 
company  in  regard  to  giving  consent  to 
second  insurances,  so  far  as  his  knowledge 
went,  is  not  sufficient  to  bind  the  insured 
who  has  no  knowledge  thereof.  Goodall  v. 
New  Eng.  Fire  Ins.  Co.,  5  Foster  (N.  H.) 
169]  [*In  Bissell  v.  Ryan,  23  111.  566, 
it  was  held  that  a  custom  or  usage  cannot 
be  established  by  the  testimony  of  a  single 
witness.] 


PART  IV.J  DAMAGES.  '  227 


DAMAGES. 

[•  §  253.  Damages  should  be  commensurate  with  the  injury,  whether  it  be  to  the  person 
or  estate. 

254.  Damages  necessarily  resulting  may  be  shown  under  ad  damnum.     Special 

damages  must  be  specially  alleged. 

255.  Jury  are  proper  judges  of  damages. 

256.  Damage  must  be  the  natural  and  prorimate  consequence  of  the  act  complamed  of. 

257.  Jury  not  bound  to  give  amount  of  damages  named  in  contract,  unless  inten- 

tion of  parties  to  liquidate  damages  is  clear. 

258.  259.  Rules  for  ascertaining  intention  of  parties.  • 

260.  Plaintiff  not  confined  in  proof  to  the  precise  number,  sum,  or  value  laid  in 

the  declaration. 

261.  Measure  of  damages  ordinarily  ascertained  by  reference  to  the  natural  and 

proximate  consequences  of  the  act  complained  of. 
261  a.  Contracts  for  the  hire  of  clerks,  agents,  laborers,  &c.,  for  a  determinate  pe- 
riod distinguished  from  contracts  for  specific  work  by  the  piece. 

262.  Measure  of  damages  in  assumpsit  upon  warranty  of  goods. 

263.  In  actions  upon  bonds. 

264.  In  actions  upon  any  of  the  covenants  of  title  in  a  deed  of  conveyance. 

265.  Exceptions  to  the  rule  that  damages  are  estimated  by  the  actual  injury  re- 

ceived. 

266.  Evidence  admissible  in  aggravation  or  mitigation  of  the  injury  itself,  rather 

than  of  the  damages. 

267.  Injuries  to  the  person  or  to  the  reputation,  how  measured. 

268.  In  proof  of  damages  both  parties  confined  to  the  principal  transaction  com- 

plained of,  its  attendant  circumstances  and  natural  results. 
268  a.  Natural  results  of  wrongful  act  include  all  damage  of  which  such  act  was 

the  efficient  cause,  though  damage  did  not  occur  until  some  time  after  act  was 

done. 
268  b.  Damages  in  a  certain  sense  prospective  are  recoverable. 

269.  Character  of  parties  generally  immaterial ;  also  the  defendant's  pecuniary 

ability. 

270.  Certain  actions  in  which  evidence  of  intention  is  immaterial. 

271.  Others  in  which  it  is  material. 

272.  If  evil  intent  manifest  itself  in  acts  accompanying  the  principal  transactions, 

these  may  be  proved. 

273.  In  trespass  quare  clausumf regit  other  acts  of  trespass  committed  by  defendant 

while  in  plaintifTs  close  may  be  proved  in  aggravation  of  injury. 

274.  Pleading,  — matter  in  justification  must  be  specially  pleaded. 

275.  Evidence  of  plaintifTs  general  character  admissible  in  actions  for  slander. 

276.  In  trover,  value  of  property  at  time  of  conversion  ordinarily  measure  of 

damages. 

277.  Damages,  how  assessed  in  cases  of  joint  torts. 

278.  Design  of  the  averment  alia  enoimia.} 


228 


LAW   OF  EVIDENCE. 


[pari  IV. 


§  253.  Damages  are  given  as  a  compensation,  recompense, 
or  satisfaction  to  tlie  plaintiff,  for  an  injury  actually  received  by 
him  from  the  defendant.  They  should  be  precisely  commensurate 
with  the  injury ;  neither  more  nor  less ;  ^  and  this  whether  it  be 
to  his   person   or   estate.^      Damages   are   never    given   in   real 


1  Co.  Lit.  257  a ;  2  Bl.  Comm.  438  ; 
Ilockwood  V.  Allen,  7  Mass.  256,  per  Sedg- 
wick, J. ;  Biissyz;.  Donaldson,  4  Dall.  207, 
per  Shippen,  C.  J. ;  3  Amer.  Jur.  257. 

2  Since  the  first  edition  of  this  volume, 
Mr.  Sedgwick  has  given  to  the  profession  a 
valuable  treatise  on  the  Law  of  Damages, 
in  which  he  denies  the  soundness  of  the 
general  rule  here  stated ;  and  lays  down 
the  broad  proposition  tliat,  "  wlierever  the 
elements  of  fraud,  malice,  gross  negligence, 
or  oppression  mingle  in  the  controversy, 
the  law,  instead  of  adhering  to  the  system, 
or  even  the  language  of  compensation, 
adopts  a  wholly  ditferent  rule.  It  permits 
the  jury  to  give  what  it  terms  punitory, 
vindictive,  or  exemplary  damages  ;  in  oth- 
er words,  blends  together  the  interest  of 
society  and  of  the  aggrieved  individual, 
and  gives  damages  not  only  to  recompense 
the  sufferer,  hut  to  punish  the  offender." 
Sedgwick  on  Damages,  p.  39.  However 
this  view  may  appear  to  be  justified  by  the 
general  language  of  some  judges,  and  by 
remarks  gratuitously  made  in  delivering 
judgment  on  other  questions,  it  does  not 
seem  supported  to  that  extent  by  any  ex- 
press decision  on  the  point,  and  is  deemed  at 
variance  not  only  with  adjudged  cases,  but 
with  settled  principles  of  law.  This  will 
be  apparent  from  an  examination  of  the 
autliorities  on  which  the  learned  author 
relies. 

In  the  first  case  cited,  in  support  of  his 
position,  that  of  Huckle  v.  Money,  2  Wils. 
205,  which  was  an  action  to  try  the  legality 
of  an  arrest  under  a  general  warrant  issued 
by  the  Secretary  of  State,  the  jury  found 
a  verdict  for  £  300,  which  the  defendant 
moved  the  court  to  set  aside  as  excessive. 
But  tlie  motion  was  denied,  on  the  ground 
that  the  damages  were  properly  left  at 
large  to  the  jury ;  with  instructions  thai 
they  were  not  bound  to  any  certain  rule, 
but  were  at  liberty  to  consider  all  the  cir- 
cumstances of  oppression  and  arbitrary 
power  by  which  the  great  constitutional 
right  of  the  jjlaintiflf  was  violated,  in  this 
attempt  to  destroy  the  liberty  of  the  king- 
dom. All  which  the  jury  were  thus  per- 
mitted to  consider  were  circumstances 
going  in  aggravation  of  the  injury  itself 
which  the  ijlaintiff  had  received,  and  so 
were  admissil)le  under  the  rule  as  stated 
in  §§  266,  272,  of  the  text.  The  case  of 
Tuliidgo  h.  Wade,  3  Wils.  18,  was  of  tho 


same  class.  It  was  trespass  for  breaking 
and  entering  the  plaintiff's  house  and  de- 
bauching his  daughter;  and  the  jury  were 
instructed  to  take  into  consideration  the 
plaintiff's  loss  of  her  service,  and  the  ex- 
penses of  her  confinement  in  his  house. 
The  verdict,  which  was  for  £  50,  was  com- 
plained of  as  excessive ;  bat  the  court 
thought  otherwise,  "  the  plaintiff  having  re- 
ceived the  insult  in  his  own  house,  where  he 
had  civilly  received  the  defendant,  and 
pei'mitted  him  to  make  his  addres.ses  to 
his  daughter."  And  it  was  observed  by 
Bathurst,  J.,  that,  "  in  actions  of  this  na- 
ture, and  of  assaults,  the  circumstances  of 
time  and  place,  when  and  where  the  insult 
is  given,  require  different  damages,  as  it 
is  a  greater  insult  to  be  beaten  upon  the 
Koyal  Exchange  than  in  a  private  room." 
It  thus  appears  that  in  this  case  the  dam- 
ages were  limited  to  the  extent  of  the  in- 
jury  received  by  the  plaintiff ;  and  that  the 
remark  of  Wilmot,  C.  J.,  reiled  on  by  tho 
learned  author,  was  altogether  gratis  dic- 
tum. In  Doe  V.  Filliter,  13  M.  &  W.  47, 
which  was  trespass  for  mesne  profits,  the 
only  question  was  whether  in  estimating 
the  costs  of  the  ejectment,  as  part  of  the 
plaintiff's  damages,  the  plaintiff  was  con- 
fined to  the  costs  taxed,  or  might  be  al- 
lowed the  costs  as  between  attorney  and 
client.  The  remark  of  Pollock,  C.  B.,  re- 
specting what  are  called  "  vindictive  dam 
ages,"  though  wholly  gratuitous,  is  ex 
plained  by  himself  to  mean  only  that  the 
jury  ma}^  "  take  all  the  circumstances  into 
their  consideration,"  namely,  the  circum- 
stances of  the  injury  inflicted,  so  far  as  they 
affected  the  plaintiff.  The  like  may  be 
observed  of  what  Mr.  Justice  Washington 
said  in  Walker  v.  Smith,  1  Wash.  C.  C. 
R.  152  ;  which  was  an  action  against  the 
plaintiff's  factor,  to  recover  the  balance 
due  to  the  plaintiff  for  goods  which  the 
factor  had  sold  without  taking  collateral 
security,  in  violation  of  orders,  the  jnir- 
chaser  proving  insolvent,  and  partial  jiay- 
ment  only  having  been  obtained.  The 
question  was,  whether  the  jury  might  as- 
sess damages  in  their  discretion,  for  less 
than  the  jjlaintiffs  actual  loss,  taking  into 
consideration  all  the  favorable  circum- 
stances on  the  defendant's  part ;  or  wheth- 
er they  were  bound  to  give  the  plaintiff 
the  precise  sum  which  he  had  lost  by  tho 
violation  of  his  orders.    And  the  judge 


PART  IV.] 


DAMAGES. 


229 


actions ;  but  only  in  personal  and  mixed  actions.     In  some  of 
the   American    States,  the   jury   are   authorized   by   statutes   to 


instructed  them  that  the  latter  was  the 
sole  measure  of  damages ;  remarking, 
passingly,  that  in  suits  for  vindictive  dam- 
ages the  jury  acted  without  control,  be- 
cause there  was  no  legal  rule  by  Avhich  to 
measure  them.  His  meaning  apparently 
■was,  that  in  actions  "  sounding  in  dam- 
ages," the  court  had  no  control  over  the 
sound  discretion  of  the  jury ;  but  that 
where  the  damages  were  susceptible  of  a 
fixed  and  certain  rule  the  jury  were  bound 
by  the  instructions  of  the  court.  The  case 
of  Tillotson  J'.  Cheetham,  3  Johns.  56,  is 
also  relied  u]ion.  This  was  case  for  li- 
bel; in  which  the  jury  were  instructed  by 
Kent,  C.  J.,  "  that  the  charge  contained 
in  the  libel  was  calculated  not  only  to  in- 
jure the  feelinrjs  of  the  j)laintifF,  but  to  de- 
stroy all  confidence  in  him  as  a  public  officer  ; 
and  in  his  opinion  demanded  from  the 
jury  exemplary  damages,  as  well  on  ac- 
count of  the  nature  of  the  offence  charged 
against  the  plaintiff,  as  for  the  protection 
of  his  character  as  a  public  offirer,  which  he 
stated  as  a  strong  circumstance  for  the 
increase  of  damages  "  ;  adding,  "  that  he 
did  not  accede  to  the  doctrine  that  the  jury 
ought  not  to  punish  the  defendant,  in  a 
civil  suit,  for  the  pernicious  effects  which  a 
publication  of  this  kind  was  calculated  to 
produce  in  society."  Here  the  grounds 
of  damages  positively  stated  to  the  jury 
were  expressly  limited  to  the  degree  of 
injury  to  the  plaintiff,  either  in  his  feelings 
or  in  his  character  as  a  public  officer. 
The  rest  is  mere  negation.  The  jury  were 
not  instructed  to  consider  any  other  cir- 
cumstances than  those  which  affected  the 
plaintiff  himself;  though  these,  they  were 
told,  demanded  exemplary  damages.  In 
this  view,  all  damages,  in  actions,  ex  delicto, 
may  be  said  to  be  exemplary,  as  having  a 
tendency  to  deter  others  from  committing 
the  like  injuries.  These  instructions, 
therefore,  were  in  accordance  with  the 
rule  already  stated.  In  support  of  them, 
the  Chief  Justice  relies  on  Huckle  v.  Mon- 
ey, and  Tullidge  v.  Wade.  He  also  re- 
fers to  Pritchard  v.  Papi'lon,  3  Harg.  St. 
Tr.  1071  ;  10  Howell,  St.  Tr.  319,  370,  S. 
C,  which  was  essentially  a  controversy 
between  the  crown  and  the  people,  before 
"  the  infamous  Jeffries  "  ;  who  told  the 
jury  that"  the  government  is  a  thing  that 
is  infinitely  concerned  in  the  case  that 
makes  it  so  popular  a  cause  "  ;  and  pressed 
them,  with  disgraceful  zeal,  to  find  large 
damages  for  that  reason,  and  for  their 
compliance  in  finding  £  10,000,  which 
was  the  amount  of  the  ad  damnum,  he 
praised  them  as  mo»  of  sense,  to  be  greatly 


commended  for  it.  The  riiling  of  that 
judge,  in  favor  of  the  crown,  will  hardly 
be  relied  upon  at  this  day  as  good  author- 
ity. But  in  Tillotson  v.  Cheetham,  the 
learned  Chief  Justice,  in  saying  that  the 
actual  pecuniary  damages  in  actions  for 
tort  are  never  the  sole  rule  of  assessment, 
probably  meant  no  more  than  this,  that 
the  jury  were  at  liberty  to  consider  all  the 
damages  accruing  to  the  plaintiff  from 
the  wrong  done,  without  being  confined  to 
those  which  are  susceptible  of  arithmetical 
computation.  The  remark  of  Sjienccr,  J., 
beyond  this  was  extrajudicial.  In  Woert 
V.  Jenkins,  14  Johns.  352,  which  was  tres- 
pass for  beating  the  plaintiflP's  horse  to 
death,  with  circumstances  of  great  bar- 
barity, the  jury  were  told  that  they  "  had 
a  right  to  give  smart-money ;  by  which 
nothing  more  seems  to  have  been  meant 
than  that  they  might  take  into  considera- 
tion the  circumstances  of  the  cruel  act,  as 
enhancing  the  injury  to  the  plaintiff"  by  the 
laceration  of  his  feelings.  In  the  Boston 
Manufacturing  Company  v.  Fiske,  2  Ma- 
son, R.  119,  the  only  question  was  whether 
in  case  for  infringing  a  patent,  the  plaintiff 
might  recover,  as  part  of  his  actual  dam- 
age, the  fees  paid  to  his  counsel  for  vindi- 
cating his  right  in  that  action.  The  ob- 
servations of  the  learned  judge,  quoted  by 
Mr.  Sedgwick,  were  made  witii  reference 
to  the  practice  in  admiralty,  in  cases  of 
marine  torts  and  prize  where  a  broadet 
discretion  is  exercised  than  in  courts  of 
common  law,  the  court  frequently  settling 
in  one  suit  all  the  equities  between  the 
parties  in  regard  to  the  subject-matter. 
The  next  case  adduced  is  that  of  Whipple 
V  Walpole,  10  New  Hamp.  R.  130,  which 
was  a  case  against  the  town  of  Walpole 
to  recover  damages  for  an  injurj^  arising 
from  the  defective  state  of  a  bridge,  which 
the  defendants  had  grossly  neglected  to 
keep  in  repair.  The  bridge  had  broken 
down  while  the  plaintiff's  stage-coach  was 
passing  over,  in  consequence  of  which  his 
horses  were  destroyed.  The  jury  were 
instructed,  "  that  for  ordinary  neglect 
the  plaintiflT  could  not  recover  exemplary 
damages ;  but  that  such  damages  might 
be  allowed  in  the  discretion  of  the  jury, 
in  case  they  believe  there  had  been  gross 
negligence  on  the  part  of  the  defendants." 
The  question  seems  in  fact  to  haj-e  been, 
whether  the  jury  were  confined  to  the  value 
of  the  horses,  or  might  take  into  consider- 
ation all  the  circumstances  of  the  injury. 
The  sole  question  before  the  court  in  bank 
was,  whether  the  above  instruction  was 
correct ;  and  they  held  that  it  was.     I^ha 


230 


LAW   OF   EVIDENCE. 


[part  IV 


assess,  in  real  actions,  the  damages,  which  by  the  common  law 
are  given  in  an  action  of  trespass  for  mesne  profits ;  but  this  only 
converts  the  real  into  a  mixed  action. 


remark  that  the  jury  might  give  "  damages 
beyond  the  actual  injury  sustained,  for  the 
sake  of  the  example,"  though  gratuitous 
and  uncalled  for,  seems  qualified  by  the 
subsequent  observation,  that  the  jury,  in 
cases  of  gross  negligence,  "  were  not  bound 
to  be  veri/  exaxt  in  estimating  the  amount 
of  damages  "  ;  and  probably  the  learned 
judges  meant  to  say  no  more  than  that  in 
such  cases  the  court  would  not  control  the 
discretion  of  the  jury,  but  would  leave  them 
at  liberty  to  consider  all  the  circumstances 
of  the  injury,  and  award  such  damages  as 
they  thought  proper.  See,  to  the  same 
effect,  Kendall  v.  Stone,  2  Sandf.  S.  C.  R. 
269;  Tifft  v.  Culver,  3  Hill,  180.  In  Lins- 
ley  V.  Bushnell,  15  Conn.  R.  225,  which 
was  a  case  for  an  injury  to  the  plaintiff's 
person,  occasioned  by  an  obstruction  left 
m  the  highway  by  the  wanton  negligence 
of  the  defendant,  the  question  was,  wheth- 
er the  jury,  in  the  estimation  of  damages, 
were  restricted  to  the  loss  of  the  plaintifTs 
time,  and  the  expenses  of  his  cure,  &c., 
or  might  also  allow,  as  part  of  his  dam- 
ages, the  necessai'y  trouble  and  expenses 
incurred  in  the  prosecution  of  his  remedy 
by  action.  And  the  court  held  that  these 
latter  were  fair  subjects  for  their  consider- 
ation. "  The  circumstances  of  aggrava- 
tion or  mitigation,"  said  the  court ;  "  the 
bodily  pain ;  the  mental  anguish ;  the 
injury  to  the  plaintiff's  business  and  means 
of  livelihood,  past  and  prospective;  all 
these  and  many  other  circumstances  may 
be  taken  into  consideration  by  the  jury, 
in  guiding  their  discretion  in  assessing 
damages  for  a  wanton  personal  injury. 
But  tliese  are  not  all  that  go  to  make  up 
the  amount  of  damage  sustained.  The 
bill  of  the  surgeon,  and  other  pecuniary 
charges,  to  which  the  plaintiff  has  been 
necessarily  subjected  by  the  misconduct  of 
the  defendant,  are  equally  proper  subjects 
of  consideration."  And  it  is  in  express 
reference  to  the  propriety  of  allowing  the 
trouble  and  expense  of  the  remedy,  that 
the  obseiTation  respecting  vindictive  dam- 
ages, or  smartmoney,  quoted  by  Mr. 
Sedgwick,  seems  to  have  been  made.  For 
the  learned  judge  immediately  cites,  in 
support  of  his  remark,  certain  authorities, 
wliich  will  hereafter  be  mentioned,  not  one 
of  which  warrants  the  broad  doctrine 
which  is  now  under  consideration  ;  and 
he  concludes  by  quoting  from  one  of  them 
with  emphasis,  the  admission,  that "  where 
an  important  right  is  in  question,  in  an 
action  of  trespass,  the  court  have  given 


damages  to  indemnify  the  party  for  the  ex- 
pense of  establishing  it."  "This  is  conceived 
to  be-  the  extent  to  which  the  law  goes,  in 
civil  actions  for  damages,  beyond  the  cir- 
cumstances of  the  transaction. 

The  learned  author  further  observes, 
that  the  doctrine  he  lays  down  has  been 
fully  adopted  by  the  Supreme  Cj)urt  of  the 
United  States  ;  and  cites  Tracy  v.  Swart- 
wout,  10  Peters,  R.  80.  That  was  an 
action  of  trover  against  a  collector  of  the 
revenue,  for  certain  casks  of  syrup  of  su- 
gar-cane, which  the  importer  had  offei'cd 
to  enter  and  bond  at  the  rate  of  fifteen  per 
cent  ad  valorem,  but  the  collector,  acting 
in  good  faith,  required  bond  for  a  duty  of 
three  cents  per  pound.  The  importer  re- 
fusing to  do  this,  the  goods  remained  in 
the  hands  of  the  defendant  for  a  long  time, 
waiting  the  decision  of  the  Secretary  of 
the  Treasury ;  who  being  of  opinion  that 
the  lighter  duty  was  the  legal  one,  they 
were  accordingly  delivered  up  to  the  im- 
porter at  that  rate  of  duty ;  but  in  the 
mean  time  bad  become  deteriorated  by 
growing  acid.  The  judge  of  the  Circuit 
Court  instructed  the  jury,  that  the  circum- 
stances of  the  dispute  ought  not  to  subject 
the  collector  to  more  than  nominal  dam- 
ages; to  which  exceptions  were  taken. 
"The  sole  question  on  this  subject  was, 
whether  the  plaintiff  was  entitled  to  the 
damages  he  had  actually  sustained;  and  the 
Supreme  Court  held  that  he  was  so  entitled. 
It  was  in  reference  to  this  question  only 
that  the  terms  exemplary  and  compensatory 
damages  were  used  ;  the  question  whether, 
in  any  case,  damages  could  be  given  by 
way  of  punishment  alone,  not  appearing 
to  have  crossed  the  minds  either  of  the 
judges  or  the  counsel. 

The  last  case  cited  by  the  author  is  that 
of  The  Amiable  Nancy,  3  Wheat.  546, 
which  was  a  libel  for  a  marine  tort, 
brought  by  neutrals  against  the  owners  of 
an  American  privateer  for  illegally  cap- 
turing their  vessel  as  a  prize,  and  for  plun- 
dering the  goods  on  board.  The  question 
was,  whether  the  owners  of  the  privateer, 
not  having  in  any  respect  participated  in 
the  wrong,  were  liable  for  any  damages 
beyond  the  prime  cost  or  value  of  the 
property  lost,  and  in  case  of  injury,  for  the 
diminution  in  its  value,  with  interest 
thereon  ;  and  the  court  held,  that  thej 
were  not ;  and  accordingly  rejected  the 
claim  for  all  such  damages  as  rested  in 
mere  discretion.  To  what  extent  the 
immediate  wrongdoers  might  have  been 


PART  IV.] 


DAMAGES. 


231 


§  254.   All  damages  must  be  the  result  of  the  injury  complained 
of ;  whether  it  consists  in  the  withholding  of  a  legal  right,  or  the 


liable,  was  a  question  not  before  the  court ; 
yet  it  is  to  be  noted,  that  in  the  passing 
allusion  which  the  learned  judge  makes  to 
their  liability,  he  merely  says  that,  in  a 
suit  against  them,  it  might  be  proper  to  go 
yet  furthei',  in  the  shape  of  exemplary  dam- 
ages, but  does  not  say  that  it  would  be ; 
for  his  attention  was  not  necessarily  drawn 
to  that  point. 

The  case  also  of  Grable  v.  Margrave,  3 
Scam.  372,  has  been  elsewhere  adduced  in 
support  of  the  rule  now  controverted.  It 
was  an  action  upon  the  case,  for  seduction 
of  the  plaintiifs  daughter ;  in  which  the 
judge  permitted  the  plaintiff  to  offer  evi- 
dence both  of  his  own  poverty  and  of  the 
pecuniary  ability  of  the  defendant;  to 
which  ruling  the  defendant  took  exception. 
And  the  court  held  the  ruling  i-ight ;  ob- 
serving, that  the  father  was  entitled  to  re- 
cover not  onl}  for  the  loss  of  service,  and 
the  actual  expenses,  but  for  the  dishonor 
and  disgrace  cast  upon  him  and  his  family, 
and  for  the  loss  of  the  society  and  com- 
fort of  his  daughter.  Clearly  this  decision 
was  in  perfect  consonance  with  the  doc- 
trine in  the  text,  §  269  ;  but  the  remark  of 
the  learned  judge  who  delivered  the  opin- 
ion of  the  court,  that,  "  in  vindictive  ac- 
tions, the  jury  are  always  permitted  to 
give  damages,  for  the  double  purpose  of 
setting  an  example,  and  of  punishing  the 
wrongdoer,"  was  uncalled  for  by  the  case 
in  judgment,  and  therefore  cannot  be  im- 
puted to  the  court.  In  Cook  v.  Ellis,  6 
Hill  (N.  Y.)  R.  466,  the  question  seems 
to  have  been  between  actual  and  exemplary 
damages,  in  the  popular  sense  of  those 
words.  It  was  an  action  of  trespass,  for  an 
assault  and  battery.  The  defendant  had 
already  been  indicted  and  fined  $250  for 
the  act ;  and  he  insisted  that  this  was  a 
bar  to  all  further  claim  of  the  plaintiff, 
"  beyond  actual  damages  " ;  but  the  judge 
told  the  jury,  that  "these  proceedings  did 
not  prevent  them  from  giving  exemplary 
damages,  if  they  chose ;  though  the  fine 
and  payment  were  proper  to  be  considered, 
in  fixing  the  amount  to  be  allowed  the 
plaintiff."  The  judgment  is  reported  in  a 
per  curiam  opinion  ;  but  it  appears  that  the 
motion  of  the  defendant  for  a  new  trial 
was  denied ;  and  the  court  are  reported  as 
saying,  among  other  things,  that  "  smart- 
money  allowed  by  a  jury,  and  a  fine  im- 
posed at  the  suit  cf  the  people,  depend  on 
the  same  principle.  Both  are  penal,  and 
intended  to  deter  others  from  the  commis- 
sion of  the  like  crime.  The  former,  how- 
ever, becomes  incidentally  compensatory  for 
damages,  and  at  the  same  time  answers  the 


purposes  of  punishment."  From  this  and 
other  expressions,  it  may  well  be  inferred, 
that  by  actual  damages  the  court  meant 
those  which  were  susceptible  of  computa- 
tion ;  and  that  by  exemplary  damages,  or 
smart-money,  they  intended  those  damages 
which  were  given  to  the  plaintiff  for  the 
circumstances  of  aggravation  attending  the 
injury  he  had  received,  and  going  to  en- 
hance its  amount,  but  which  were  left  to 
the  discretion  of  the  jury,  not  being  suscep- 
tible of  any  other  rule.  But  as  a  decision, 
the  case  extends  no  fiirther  than  this,  that 
in  an  action  for  trespass  to  the  person,  the 
payment  of  a  fine,  upon  a  criminal  convic- 
tion for  tlie  same  offence,  cannot  go  in 
mitigation  of  the  damages  to  which  the 
plaintiff  is  entitled.  The  case  of  Johnson 
V.  Weedman,  4  Scam.  495,  sometimes  also 
cited,  is  still  less  to  tlie  point.  It  was 
trover  for  a  borse,  bailed  to  the  defendant 
for  agistment,  and  used  by  him  without 
leave,  but  under  circumstances  entitling 
the  plaintiff  to  no  more  than  nominal  dam- 
ages. And  the  jury  having  found  for  the 
defendant,  the  court  refused  to  disturb  the 
verdict.  To  these  may  be  added  the  case 
of  McNamara  v.  King,  2  Gilm.  432. 

From  this  examination  of  the  authori- 
ties, adduced  in  support  of  the  position, 
that,  in  the  cases  alluded  to,  damages  may 
be  given  purely  by  way  of  punishment, 
irrespective  of  the  degree  and  circum- 
stances of  injury  to  the  plaintiff,  it  is  man- 
ifest that  it  has  not  the  countenance  of 
any  express  decision  upon  the  point, 
though  it  has  the  apparent  support  of  sev- 
eral obiter  dicta,  and  may  seem  justified  by 
the  terms  "  exemplary  damages,"  "vindic- 
tive damages,"  "  smart-money,"  and  the 
like,  not  unfrequently  used  by  judges,  but 
seldom  defined.  But  taken  in  the  connec- 
tion in  which  these  terms  have  been  used, 
they  seem  to  be  intended  to  designate  in 
general  those  damages  only  which  are  in- 
capable of  any  fixed  rule,  and  lie  in  the 
discretion  of  the  jury;  such  as  damages 
for  mental  anguish,  or  personal  indignity 
and  disgrace,  &c.,  and  these,  so  far  only 
as  the  sufferer  is  himself  affected.  If  more 
than  this  was  intended,  how  is  the  party  to 
be  protected  from  a  double  punishment  ? 
For  after  the  jury  shall  have  considered 
the  injury  to  the  public,  in  assessing  dam- 
ages for  an  aggravated  assault,  or  for  ob- 
taining goods  by  false  pretences,  or  the 
like,  the  wrongdoers  are  still  liable  to  in- 
dictment and  fine  as  well  as  imprisonment, 
for  the  same  offence.  See  Warren  v. 
Austin,  4  Cush.  273. 

This  view  of  the  true  meaning  of  those 


232 


LAW   OF   EVIDENCE. 


[part  IV. 


breach  of  a  duty  legally  due  to  the  plaintiff.     Those  which  neces- 
sarily  result  are  termed  general  damages^  being  shown  under  the 


terms  was  taken  by  Smith,  J.,  in  Cliurchi 
ill  V.  Watson,  5  Day,  R.  144.  It  was  tres- 
pass de  bonis  asportatis,  committed  with 
malice,  and  with  circumstances  of  peculiar 
aggravation,  to  prevent  the  plaintiff  from 
completing  a  contract  for  building  a  ves- 
sel. And  the  question  was,  whetlier  the 
jury  were  confined  to  the  value  of  the  prop- 
erty taken,  and  presumptive  damages  for 
the  force  only;  or  whether  they  might 
consider  all  tlie  aggravating  circumstances 
attending  the  trespass,  and  the  plaintiff's 
actual  damage  sustained  by  it.  The  court 
held  the  latter.  The  learned  judge  re- 
marked, that,  "in  actions  founded  in  tort, 
the  first  object  of  a  jury  sliould  be  to  re- 
munerate the  injured  party  lor  all  the  real 
damage  he  has  sustained.  In  doing  this, 
the  value  of  the  article  taken  or  destroyed 
forms  one  item ;  there  may  be  others,  and 
in  this  case  I  think  there  were  others." 
He  then  mentions  the  interruption  and  de- 
lay which  occuiTcd  in  building  the  vessel, 
as  of  the  class  of  damages  to  which  he  al- 
ludes, and  adds  that  he  shall  not  attempt 
to  draw  the  line  between  consequences 
which  may  properly  influence  a  jury  in 
assessing  damages,  and  those  wliich  are  so 
far  remote  and  dependent  upon  other  causes, 
that  thej'  cannot  be  taken  into  considera- 
tion. "  In  addition,"  he  observes,  "  to 
the  actual  damage,"  (meaning  doubtless, 
from  the  connection,  the  direct  pecuniary 
damage  above  alluded  to,)  "  which  the  par- 
ty sustains  in  actions  founded  in  tort,  the 
jur}'  are  at  liberty  to  give  a  further  sum, 
which  is  sometimes  called  vindictive,  some- 
times exemplary,  and  at  other  times  pre- 
sumptive damages.  These,  from  their  na- 
ture, cannot  be  governed  by  any  precise 
rule,  but  are  assessed  by  the  jury,  upon  a 
view  of  all  the  circumstances  attending  the 
transaction."  He  afterwards  says  :  "  Indeed 
I  know  of  no  such  thing  as  presumptive 
damages  for  force.  It  is  a  wrong,  for 
which  the  law  presumes  damages,  and  the 
amount  will  depend  on  the  nature,  extent, 
and  enormity  of  the  wrong;  but  force  par- 
takes not  of  tlie  nature  of  right  or  wrong, 
in  such  a  manner  that  the  law  can  raise 
any  presumption."  A  similar  view  of  the 
rule  of  damages  in  torts  had  previously 
been  taken  by  ttie  court  in  Edwards  v. 
Beach,  3  Dixy,  11.  447,  which  was  trespass 
for  destroying  a  tavern-keeper's  sign  ;  the 
plaintiff  claiming  damnges  commensurate 
with  the  injury,  and  the  defendant  resisting 
all  but  the  value  of  the  sign.  So,  in  Den- 
ison  v.  Hyde,  6  Conn.  508,  whicli  was  tres- 
pass for  carrying  away  the  plaintiff's  ves- 
sel, the  rule  was  held  to  be,  that,  in  tort, 


"  not  only  the  direct  damage,  but  the  ])rob- 
able  or 'inevitable  damages,  and  those  ivhich 
result  from  the  aggravating  circmnstancei  at- 
tending the  act,  are  proper  to  be  estimated 
by  the  jury."  So,  in  Treat  v.  Barber,  7 
Conn.  K.  274,  which  was  trespass,  the  de- 
fendant having  broken  open  the  plaintiff's 
chest,  containing  her  wearing  apparel,  and 
used  language,  in  relation  to  the  contents 
of  it,  that  wounded  her  feelings,  it  was 
held,  that  these  circumstances  were  proper 
to  be  considered  by  the  jury,  as  aggravating 
the  injury,  and  .so  increasing  the  damages. 
In  Merrills  v.  The  Tariff  Manuf.  Co^  10 
Conn.  R.  384,  which  was  an  action  on  the 
case,  the  court  referred  to  the  malice,  wan- 
tonness, and  spirit  of  i-evenge  and  ill-will, 
with  which  the  act  was  done,  and  observed, 
that  "  these  circumstances  of  aggravation 
may,  with  great  propriety,  be  considered 
in  fixing  the  remuneration  to  rchich  the  plain- 
tiff is  entitled."  The  same  view  of  the  true 
meaning  and  limit  of  the  term  "  vindictive 
damages  "  was  taken  by  Lord  Abinger,  C. 
B.,  in  Brewer  v.  Dew,  11  M.  &  W.  625, 
whicli  was  trespass  for  groundlessly  seiz- 
ing and  taking  the  plaintiff's  goods,  per 
quod  he  was  annoyed  and  injured  in  his 
business,  and  believed  to  be  insolvent,  and 
certain  lodgers  left  his  house,  &c.  'i'he 
defendant  pleaded  the  bankruptcy  of  the 
plaintiff"  in  bar  of  the  action  ;  to  which  the 
plaintiff  demurred  ;  thus  raising  the  ques- 
tion, whether  the  damages  passed  to  the 
assignees.  And  the  Lord  Chief  Baron 
said  :  "  The  substantial  ground  on  which 
this  case  is  to  be  decided  is  this,  —  wheth 
er,  on  this  declaration  as  it  stands,  the 
judge  could  give  vindictive  damages  ^r  the 
seizing  and  taking  of  the  goods  beyond  their 
value.  For  the  breaking  and  entering  it  is 
admitted  they  might  give  damages  beyond 
the  amount  of  the  actual  injury  "  (evi- 
dently meaning,  beyond  the  injury  to  the 
property).  "  Now  I  think  that  under  this 
declaration  the  ])laintift'  might  give  evi- 
dence to  show  that  the  entering  and  the 
seizure  of  goods  were  made  under  a  false 
and  unfounded  pretence  of  a  legal  claim, 
and  that  thereby  the  plaintiff  was  greatly 
annoyed  and  disturbed  in  cart'j'ing  on  his 
business,  and  was  believed  to  l)c  insolvent, 
and  that  in  consequence,  his  lodgers  lefl.  him. 
Might  not  the  jury  then  give  vindictive 
damages  for  such  an  injury,  beyond  the  mere 
value  of  the  goods?"  Here  it  is  plain, 
that  by  "  vindictive  damages  "  the  learned 
judge  intended  only  the  damages  which  the 
jilaintiffhad  sustained,  beyond  the  value  of 
his  goods;  and  not  those,  if  any,  for  any 
supposed  injury  to   tlie   public   at  large. 


PART  IV.] 


DAMAGES. 


233 


ad  damnum,  or  general  allegation  of  damages,  at  the  end  of  the 
declaration ;  for  the  defendant  must  be  presumed  to  be  aware 


Such  also  was  plainly  the  sense  in  which 
Mr.  Justice  Story  used  this  term  in  "Whit- 
temore  r.  Cutter,  1  Gall.  483.  "  By  the 
terms  '  actual  damage,'  "  said  he,  "  in  the 
statute  (referring  to  the  patent  act),  are 
meant  such  damages  as  the  plaintiffs  can 
actually  prove,  and  have  in  fact  sustained, 
as  contradistinguished  to  mere  imaginary 
or  exemphiry  damages,  which,  in  personal 
torts,  are  sometimes  given.  In  mere  per- 
sonal torts,  as  assaults  and  batteries,  defa- 
mation of  character,  &c.,  the  law  has,  in 
proper  cases,  allowed  the  party  to  recover 
not  merely  for  any  actual  injury,  but  for 
the  mental  anxictij,  the  putdic  degradation  and 
wounded  sensibil/ti/,  which  honorable  men 
feel  at  violations  of  the  sacredness  of  their  per- 
sons and  characters."  It  seems  superfluous 
to  state  at  large  the  peculiar  cases  in  which 
a  similar  rule  has  been  laid  down.  It  was 
emphatically  but  briefly  stated  by  Wil- 
liams, C.  J.,  in  Bateman  i".  Goodyear,  12 
Conn.  R.  .580,  which  was  trespass  for  an 
aggravated  forcible  entry,  in  tliese  words  : 
"  What  then  is  the  principle  upon  which 
damages  are  given  in  an  action  of  tres- 
pass ■?  The  party  is  to  be  indemnified  for 
what  he  has  actually  suffered  ;  and  then  all 
those  circumstances  xchich  give  character  to 
the  transaction  are  to  be  weighed  and  consid- 
ered." He  cites  the  above  case  of  Church- 
ill V.  Watson,  and  refers  to  Bracegirdle  v. 
Orford,  2  M.  &  S.  77,  where  the  circum- 
stances of  the  entry  into  the  plaintiff's 
house,  namely,  upon  a  false  charge  of  con- 
cealment of  stolen  goods,  to  the  injury  of 
her  reputation,  were  held  proper  for  the 
consideration  of  the  jury ;  Le  Blanc,  J., 
remarking,  "  that  it  is  always  the  practice 
to  give  in  evidence  the  circumstances  which 
accompany  and  give  a  character  to  the  tres- 
pass." The  party  is  to  be  indemnified; 
nothing  more.  But  every  circumstance  of 
the  transaction  tending  to  his  injury  is  to 
be  considered.  At  this  limit  the  jury  are 
to  stoj) ;  —  a  limit  carefully  marked  by  the 
court  in  Coppin  v.  Braithwaite,  8  Jur.  875. 
They  may  weigh  every  fact  which  goes  to 
his  injury,  whether  in  mind,  body, or  estate; 
but  are  not  at  liberty  to  consider  facts 
which  do  not  relate  to  the  injury  itself, 
r  to  its  consequences  to  the  plaintiff.  In 
oifii,^-  words,  they  cannot  go  beyond  the 
issue  ;  which  is  the  guilt  of  the  defendant, 
and  the  damage  it  did  to  the  plaintiff;  for 
(his  only  did  the  defendant  come  prepared 
10  meet.  Such  plainly  was  the  principle 
of  the  decision  in  the  cases  already  cited ; 
as  it  also  was  in  Hall  v.  Conn.  B.  Steam- 
boat Co.,  13  Conn.  E.  320,  which  was 
case  for  an  inhuman  injury  to  a  passenger  ; 


in  Southard  v.  Rexford,  6  Cowen,  R.  264, 
which  was  for  breach  of  a  promise  of  mar- 
riage ;  in  Major  v.  Pulliam,  3  Dana,  R. 
592,  which  was  trespass  qiiare  clausum /re- 
git;  and  in  Rockwood  v.  Allen,  7  Mass. 
254,  which  was  case  for  the  default  of  the 
sheriff's  deputy.  In  all  these  cases  there 
were  circumstances  of  misconduct  and 
gross  demerit  on  the  part  of  the  defendant, 
richly  deserving  punishment  in  the  shape 
of  a  pecuniary  mulct,  and  fairly  affording  a 
case  for  damages  on  that  ground  alone;  yet 
in  none  of  them  do  the  court  intimate  to 
the  jury  that  tliey  may  assess  damages  for 
the  plaintiff  to  any  amount  more  than 
commensurate  with  the  injury  which  lie 
sustained.  See  also  Matthews  v.  Bliss,  22 
Pick.  48. 

The  most  approved  text-writers,  also, 
justify  this  rule  of  damages.  Thus  Black- 
stone,  2  Bl.  Comm.  438,  defines  damages 
as  the  money  "  given  to  a  man  by  a  jury, 
as  a  compensation  or  satisfaction  for  some  in- 
ury  sustained ;  as  for  a  battery,  for  impris- 
onment, for  slander,  or  for  trespass." 
Hammond,  Law  of  Nisi  Prius,  p.  33,  lim- 
its the  remedy,  by  an  action  of  trespass,  to 
the  recovery  of  "a  compensation  for  the  in- 
jury sustained."  Id.  pp.  43  -  48.  Audit  is 
worthy  of  remark,  that  Ch.  Baron  Comyns, 
in  treating  expressly  of  damages,  nowhere 
intimates  a  power  to  assess  them  bevond 
this.  3  Com.  Dig.  Damages,  E.  "The 
same  opinion  was  entertained  by  Ld.  Den- 
man,  who  observed,  that  "  the  principle 
on  which  actions  are  maintainable  is  not- 
the  punishment  of  guilty  persons,  but  com- 
pensation to  innocent  sufferers."  Filliter 
V.  Phippard,  12  Jur.  202,  204;  11  Ad.  & 
El.  356,  N.  S.  Dr.  Rutherforth,  also,  de- 
fines "damages"  with  equal  strictness. 
"  By  damage,  we  understand  every  loss  or 
din^nution  of  what  is  a  man's  oivn  occa- 
sioned by  the  fault  of  another."  1  Rutlif. 
Inst.  b.  1.  ch.  17,  §  1,  p.  385  (Phil,  ed.), 
1799.  He  follows  Grot.  De  Jur  Bel.  lib. 
2,  cap.  17,  §  ii.  This  chapter  of  Ruther- 
forth is  a  precise  and  luminous  statement 
of  the  principles  on  which  damages  ought 
to  be  computed ;  but  nowhere  counte- 
nances the  ])osition  of  Mr.  Sedgwick.  In 
the  only  passage  which  he  has  cited,  as 
looking  that  way,  Adz.  a  paragraph  in  §  xiv. 
p.  400,  the  author  is  speaking  of  the  rule 
of  reparation  where  there  is  no  malice ; 
and  in  stating  the  degree  of  fault,  he  thinks 
that  the  grossest  faults  may  well  deserve 
punishment ;  but  he  does  not  there  intimate 
hoiv  the  punishment  should  be  inflicted. 
The  whole  passage  is  as  follows :  "  The 
obligation  to  make  reparation  for  damages 


234 


LAW   OF  EVIDENCE. 


[part  IV. 


of  the  necessary  consequences  of  his  conduct,  and  therefore  can- 
not be  taken  by  surprise  in  the  proof  of  them.     Some  damages 


done  by  onr  means  is  not  confined  to  those 
actions  only  which  are  criminal  enough  to 
subject  us  to  punishment.  Though  there 
is  no  degree  of  malice  in  an  action  by 
which  another  is  injured,  yet  it  may  arise 
fi"om  some  faulty  neglect  or  imprudence  in 
him  who  does  it,  or  is  the  occasion  of  its 
being  done  ;  and  when  any  person  has  suf- 
fered damage,  for  want  of  his  taking  such 
care  as  he  ought  to  have  taken,  the  same 
law  which  obliged  him,  as  far  as  he  was 
able,  to  avoid  doing  harm  to  any  man,  can- 
not but  oblige  him,  when  he  has  neglected 
this  duty,  to  undo,  as  well  as  he  can,  what 
harm  he  has  been  the  occasion  of;  that  is, 
to  make  amends  for  the  damage  which  an- 
other has  sustained  through  his  neglect. 

"  Those  faults  which  consist  in  neglect 
are  sometimes  divided  into  three  degrees  ; 
a  great  fault,  which  is  such  a  neglect  as 
all  men  may  well  be  supposed  and  ought 
to  guard  against ;  a  small  fault,  which  is 
such  a  neglect  as  discreet  and  diligent 
men  are  not  usually  guilty  of;  and  the 
smallest  fault,  which  is  such  a  neglect  as 
the  most  exact  and  most  prudent  take  care 
to  avoid. 

"  Indeed,  in  many  instances  of  gross 
faults,  it  is  so  difiicult  to  distinguish  be- 
tween the  mere  neglect  and  a  malicious 
design,  that,  besides  the  demand  of  repara- 
tion for  damages  done,  some  punishment 
may  reasonably  be  inflicted  upon  the  per- 
son so  offending. 

"  Sometimes,  and  especially  in  what 
may  seem  faults  of  the  lower  degrees,  the 
damage  which  arises  from  our  supposed 
neglect  will  be  found  upon  inquiry  to 
have  rather  been  owiiig  to  the  neglect  of 
the  person  who  suffers  it ;  and  then  we  are 
not  only  clear  from  all  guilt  that  may  sub- 
ject us  to  punishment,  but  from  all  blame 
that  might  oblige  us  to  make  reparation." 
See  Sedgwick  on  Damages,  p.  488,  note. 

On  the  contrary,  Dr.  Hutherforth,  a  lit- 
tle farther  onward,  in  the  same  book,  ch. 
18,  expressly  denies  the  right  of  the  party 
injured  to  anything  more  than  compensa- 
tion for  the  damages  he  has  sustained. 
He  says  :  "  As  the  heirs  of  the  criminal 
have  no  claim  to  such  goods  as  he  loses 
in  the  way  of  punishment,  so  neither  has 
the  injured  person  any,  considered  merely 
as  the  injured  person.  He  has  indeed  a 
right  to  so  much  of  the  criminal's  goods 
as  will  make  him  amends  for  the  damage 
which  he  has  suffered  ;  but  no  reason  can 
be  given  why  he  should  have  a  right  to 
more  ;  unless  some  positive  law  has  given 
him  such  a  right.  The  ends  which  justify 
punishment  will  by  no  means  extend  his 


claim  any  farther  than  this.  The  crimi- 
nal,  by  suffering  in  his  goods,  may  be  dis- 
couraged or  prevented  from  offending 
again  ;  but  a  design  to  discourage  or  pre- 
vent him  from  offending  again  can  be  no 
ground  for  that  person  whom  he  has  in- 
jured by  offending  once  to  claim  property 
in  the  goods  which  he  is  deprived  of. 
The  ends  of  pimishment  may  be  answered 
by  taking  the  criminal's  goods  from  him ; 
but  these  ends  do  not  require  that  the 
property  which  he  loses  should  be  vested 
in  the  person  whom  he  has  injured."  See 
1  Rutherforth's  Institutes,  b.  1,  ch.  18, 
§  xiv.  p.  434. 

It  was  solely  upon  this  ground  of  com- 
pensation to  the  plaintiff  for  the  injury  to 
his  feelings  by  the  very  insulting  conduct 
of  the  defendant,  that  the  verdict  was  held 
good  in  Merest  v.  Harvey,  5  Taunt.  442. 
Ld.  Kenyon  has  sometimes  been  quoted  as 
having  said,  that  though  a  plaintiff  may 
not  have  sustained  an  injury  by  adultery, 
to  a  given  amount,  yet  that  large  damages, 
for  the  sake  of  public  example,  should  be 
given.  And  this  supposed  opinion  of  his 
was  alluded  to  in  the  case  of  Markbam  v. 
Fawcett.  But  Mr.  Erskine,  who  was  for 
the  plaintiff  in  that  action,  protested  that 
"  he  never  said  any  such  thing."  "  He 
said  that  every  plaintiff  had  a  right  to  re- 
cover damages  up  to  the.  extent  of  the  injury 
he  had  received;  and  that  public  example 
stood  in  the  way  of  showing  favor  to  an 
adulterer,  by  reducing  the  damages  below 
the  sum  which  the  jury  would  otherwise 
consider  as  the  lowest  compensation  for  the 
wrong."  2  Erskine's  Speeches,  p.  9.  The 
general  rule,  as  thus  limited,  was  recog- 
nized in  Gunter  v.  Astor,  4  J.  B.  Moore, 
p.  12,  where  the  defendants,  who  were  ri- 
val manufacturers  in  the  same  trade  with 
the  plaintiff,  had  invited  his  company  of 
servants  to  a  dinner,  got  them  intoxicated, 
and  induced  them  to  sign  an  agreement  to 
leave  the  plaintiff's  sen-ice  and  enter  their 
own,  which  they  did.  The  action  was  in 
case  for  conspiracy ;  and  Ld.  C.  J.  Dallas 
"  left  it  to  the  jury  to  give  damages  com- 
mensurate with  the  injury  the  plaintiff  had 
sustained."  A  new  trial  was  moved  for,  on 
the  ground,  that  as  the  plaintiff's  men 
worked  by  the  piece  only,  and  not  by  a 
contract  on  time,  the  plaintiff  was  entitled 
to  damages  only  for  the  halfday  tiiey 
spent  at  the  dinner ;  whereas  the  jury 
had  given  .£1,600,  being  the  proved  value 
of  two  years*  profits.  But  the  motion  was 
denied,  on  the  ground  that  the  plaintiff  was 
entitled  to  recover  damages  for  the  loss  he 
actually  sustained  by  their  leaving  him  at 


TART  IV.] 


DAMAGES. 


236 


are  always  presumed  to  follow  from  the  violation  of  any  right 
or  duty  implied  by  law ;  and  therefore  the  law  will  in  such  cases 


that  critical  period,  of  which  the  jury  were 
the  proper  and  exclusive  judges.  Here 
was  a  case  of  gross  fraud  and  aggravated 
wrong,  particularly  dangerous  in  a  manu- 
facturing community ;  and  yet  no  one  pre- 
tended that  the  plaintiff  had  a  right  to 
greater  damages  than  he  had  himself  sus- 
tained, however  deserving  the  defendants 
might  be  of  a  heavy  pecuniary  mulct,  by 
way  of  example.  A  subsequent  case,  par- 
allel to  this  in  its  principles,  is  that  of  Wil- 
liams V.  Curric,  1  M.  G.  &  S.  841  ;  in 
which,  though  a  case  of  aggravated  and 
annoying  trespass,  the  jury  were  restricted, 
in  their  award  of  damages,  to  a  fair  com- 
pensation for  the  injury  sustained.  See  also 
Sears  v.  Lyons,  2  Stark.  R.  317,  which 
was  trespass  for  breaking  the  plaintiff's 
close  and  poisoning  his  fowls ;  where  the 
jury  were  cautioned  to  guard  their  feel- 
ings against  the  impression  likely  to  have 
been  made  by  the  defendant's  conduct. 

The  rule  of  damages,  as  limited  by  the 
extent  of  the  injury  to  the  plaintiff,  was 
the  same  in  the  Koman  civil  law.  See  1 
I'omat's  Civil  Law,  pp.426,  427,  book  3, 
tit.  5,  §  2,  n.  8,  and  notes ;  Wood's  In- 
stitute of  the  Civil  Law,  book  3,  ch.  7, 
pp.  258-264,  and  the  places  there  cited. 

The  broad  doctrine  stated  by  Mr.  Sedg- 
wick finds  more  countenance  from  the 
bench  of  Pennsylvania  than  in  any  other 
quarter ;  and  yet  even  there  it  can  hardly 
be  said  to  have  been  adjudged  to  be  the 
law,  as  may  be  seen  by  the  cases  decided. 
The  earliest,  usually  referred  to,  is  Som- 
mer  v.  Wilt,  4  S.  &  R.  19,  which  was  an 
action  on  the  case  to  recover  damages  for 
the  malicious  abuse  of  legal  process,  in 
which  the  jury  found  for  the  plaintiff, 
assessing  damages  at  $  9,500.  The  case 
came  before  the  court  in  bank,  on  a  motion 
to  set  aside  the  verdict,  on  the  ground  that 
the  damages  were  excessive  ;  but  the  mo- 
tion was  refused  for  the  express  reason 
that  "  all  the  facts  and  circumstances  "  of 
the  case  "  were  fairly  submitted  to  the 
jury,  to  draw  their  own  conclusion  "  ;  and 
that  "  there  were  circumstances  from  which 
the  jury  might  have  inferred  malice,  and 
evidence  whicli  satisfied  them  that  tJte  ruin 
of  the  plaintiff  vi as  occasioned  by  an  act  of 
oppression,  and  many  aggravating  circum- 
stances of  useless  severity."  This  case, 
therefore,  is  in  strict  accordance  with  the 
rule  as  we  have  stated  it,  the  damages  be- 
ing referred  to  the  extent  of  the  wrong 
done  to  the  plaintiff.  When,  therefore, 
the  learned  judge,  in  the  course  of  his 
judgment,  remarked,  that  the  standard 
of  damap-es  in  actions  of  that  nature  "  was 


not  even  a  matter  of  mere  compensation  to 
the  party,  but  an  example  to  deter  oth- 
ers," the  remark  was  not  called  for  by  the 
question  before  him,  but  was  entirely  ex- 
trajudicial. This  case  was  cited  and  its 
principle  approved,  in  Kuhn  v.  North,  10 
S.  &  R.  399,  411;  in  wliich  the  court 
granted  a  new  trial  because  of  excessive 
damages,  in  an  action  against  the  sheriff, 
where  he  honestly  intended  to  perform 
his  duty,  and  the  jury  were  plainly  mis- 
taken. 

(Of  a  similar  character  was  the  observa- 
tion of  Mr.  Justice  Grier,  in  the  late  case 
of  Stimpson  v.  The  Rail  Roads,  1  Wallace, 
164,  170.  It  was  an  action  on  the  case  for 
violation  of  the  plaintiff's  patent-right; 
and  the  question  was,  whether  the  plain- 
tiff's actual  costs  out  of  pocket  in  prose- 
cuting the  suit  might  be  included  by  the 
jury  in  their  estimation  of  damages.  The 
learned  judge,  in  delivering  his  opinion  in 
the  negative,  incidentally  said  :  "  It  is  a 
well-settled  doctrine  of  the  common  law, 
though  somewhat  disputed  of  late  (10  Law 
Reporter,  49),  that  a  jury,  in  actions  of 
trespass  or  tort,  may  inflict  exemplary  or 
vindictive  damages,  upon  a  defendant,  liav- 
ing  in  view  the  enormity  of  the  defendant's 
conduct,  rather  than  compensation  to  the 
plaintiff."  This  remark  was  clearly  gra- 
tuitous, it  being  irrelevant  to  the  point  in 
judgment.) 

The  strongest  case  in  favor  of  giving 
damages  to  the  plaintiff  beyond  what  he 
has  sustained  is  that  of  McBride  v.  Mc- 
Laughlin, 5  Watts,  375,  which  was  tres- 
pass against  a  judgment-creditor,  for  a  wil- 
ful and  malicious  abuse  of  process,  in  the 
levy  of  his  execution  against  two  joint 
debtors,  "  under  circumstances  of  peculiar 
injustice  and  oppression."  It  appeared 
that  the  oppression  was  in  fact  meditated 
not  against  the  present  plaintiff,  but  against 
the  other  debtor,  to  whom  the  property 
taken  was  supposed  to  belong ;  and  that 
the  present  plaintiff  had  been  joined  in  the 
judgment  by  mistake  ;  and  it  was  set  aside 
as  to  him.  Tiie  question  was,  whether  the 
defendant's  malice  and  misconduct  in  the 
transaction  could  be  taken  into  the  estima- 
tion of  damages,  inasmuch  as  it  was  not 
intended  against  the  plaintiff.  The  judge 
ruled  that  it  might ;  and  his  ruling  was 
sustained  by  the  court  in  bank.  There 
was  no  discovery  of  error  or  mistake  by 
the  creditor,  and  consequent  apology,  dur- 
ing the  oppressive  transaction ,'  but  the 
whole  was  carried  out  to  its  final  consum- 
mation, in  the  most  insolent  and  cruel 
manner.     The  case,  therefore,  falls  within 


236 


LAW    OF   EVIDENCE. 


[part  IV. 


award  nominal  damages,  if  none  greater  are  proved.^     But  where 
the  damages,  though  the  natural  consequences  of  the  act  com- 


our  rule,  that  the  jury  may  consider  all  the 
circumstances  affecting  the  plaintiff,  citlier 
in  mind,  body,  or  estate,  and  award  him 
damages  to  the  extent  of  the  injury  done 
to  him  in  either  of  those  respects.  Surely, 
if  A  s])its  in  B's  face,  on  'Qhange,  it  does 
not  diminish  the  disgrace,  iior,  of  course, 
the  extent  of  the  injury,  for  him  afterwards 
to  say  that  he  mistook  B  for  C.  The 
crowd  that  saw  the  indignity  may  never 
come  to  the  knowledge  of  this  fact,  nor 
does  it  lessen  the  pain  inflicted  upon  liis 
feelings  at  the  time.  In  both  cases,  as  in 
all  others,  the  evidence  is  confined  to  the 
principal  fact,  with  all  its  attending  circum- 
stances, stamping  its  character,  and  affect- 
ing the  party  injured.  In  tlie  case  we  have 
just  cited,  however,  the  learned  judge  does 
seem  to  place  the  decision  of  the  court  on 
the  ground  tluit,  in  certain  offences  against 
morals  which  would  otherwise  pass  with- 
out reprehension,  "  the  providence  of  the 
courts  "  permits  the  private  remedy  to  be- 
come an  instrument  of  public  correction. 
We  say  seems  to  place  it ;  for  he  also  uses 
expressions  which  equally  indicate  a  re- 
liance upon  the  rule  which  confines  the 
jury  to  the  evidence  affecting  the  plaintiff 
alone.  Such,  for  example,  is  the  conclud- 
ing sentence  of  his  judgment :  "  The  de- 
fendant was  guilty  of  ivilful  oppression,  and 
he  is  properly  punished  for  it."  Oppres- 
sion of  whom  1  Clearly  the  plaintiff,  and 
no  other.  Our  limits  will  not  permit  an 
extended  examination  of  all  that  fell  from 
tlie  court  on  this  occasion ;  but  with  the 
profound  respect  we  sincerely  entertain  for 
that  learned  bench,  we  may  be  allowed  to 
question  the  accuracy  of  the  assertion,  that, 
in  an  action  for  seduction  of  a  daughter, 
the  loss  of  service  is  the  only  legal  ground 
of  damages  to  the  plaintiff.  It  is  true,  it 
was  stilted"  by  Ld.  Ellenborough,  in  1809, 
to  be  difficult  to  perceive  the  legal  propri- 
ety of  extending  the  rule  beyond  that ;  yet 
he  confessed  the  practice  of  so  extending 
it  had  become  inveterate ;  and  accordingly 
he  instructed  the  jury  also  to  consider  the 
injury  to  the  plaintiff's  parental  feelings; 
and  the  rule  has  for  many  years  been  well 
fcttlcd,  that  in  this,  as  in  other  wrongs, 
the  wounded  feelings,  the  loss  of  comfort, 
and  the  dishonor  of  the  plaintiff,  resulting 
from  the  act  of  the  defendant,  form  a  legal 
ground  of  damages,  as  part  of  the  transac- 
tion complained  of^.  The  grounds  of  the 
action  for  seduction  were  recently  exam- 
ined in   England,  in  Grinnel  v.  Wells,  7 


M.  &  G.  1033,  and  the  damages  explicitly 
admitted  to  be  given  as  compensation  ;  not 
limited,  however,  to  the  actual  expenditure 
of  the  plaintiff's  money,  but  given  accord- 
ing to  all  the  circumstances  of  aggrava- 
tion in  the  particular  case.  These  arc  con- 
sequences of  the  defendant's  wrongful  act, 
done  to  the  plaintiff",  to  his  injury  ;  and  it 
is  for  these,  and  not  for  the  outrage  to  the 
public,  that  damages  are  given.  See  post, 
§  579,  and  cases  there  cited.  Andrews  v. 
Askey,  8  C.  &  P.  7.  The  case  of  Benson 
V.  Frederick,  3  Burr.  1845,  cited  in  Mc- 
Bride  v.  McLaughlin,  was  not  a  case  of 
damnges  given  for  the  sake  of  example.  It 
was  an  action  against  a  colonel,  for  order- 
ing a  private  to  be  whipped  out  of  spite  to 
his  major,  who  had  given  the  man  a  fur- 
lough. The  jury  gave  him  £150;  and 
the  court  refused  to  set  aside  the  verdict 
for  excessiveness  of  damages,  because  the 
man,  "  though  not  much  hurt,  indeed,  was 
scandalized  and  disgraced  by  such  a  punish- 
ment." 

It  is  worthy  of  remark,  that  in  Wynn 
V.  Allard,  5  Watts  &  Serg.  524,  which  was 
trespass  for  a  collision  of  vehicles  on  the 
road,  the  same  learned  court  of  Pennsylva- 
nia very  properly  held,  that  the  drunken- 
ness of  the  defendant  was  admissible  in 
evidence,  to  determine  the  question  of  neg- 
ligence, where  the  proof  was  doubtful ; 
but  "  not  to  inflame  the  damages."  Why 
not,  if  it  was  "  an  offence  against  morals  "  ? 
For  it  certainly  must  have  been  deemed 
such  an  offence.  And  in  Rose  v.  Story, 
1  Barr,  R.  190,  197,  in  trespass  de  bonis 
asportatis,  where  the  jury  had  been  allowed, 
in  addition  to  the  value  of  the  property,  to 
give  such  further  damages  as  "  under  all  the 
circumstances  of  the  case,  as  argued  by  the 
counsel,  they  might  think  the  plaintiff"  en- 
titled to  demand " ;  the  same  court  held 
the  instruction  wrong,  as  giving  the  jury 
"  discretionary  power  without  stint  or  limit, 
highly  dangerous  to  the  rights  of  the  de- 
fendant," and  "  leaving  them  without  any 
rule  whatever." 

The  subject  of  vindictive  damages  has 
recently  been  before  several  other  Amer- 
ican tribunals.  In  the  Circuit  Court  of  the 
United  States,  in  Taylor  v.  Carpenter,  10 
Law  Reporter,  35,  188;  2  Woodb.  &  Mi- 
not,  1,  21 ;  which  was  case  for  counter- 
feiting the  plaintiff's  marks  on  goods  of  the 
defendant,  in  which  Sprague,  J.,  had  in- 
structed the  jury  to  give  exemplary  dam- 
ages, for  the  sake  of  public  example ;  the 


1  WhiUemore  v.  Cu**er,  1  Gall.  443,  per  Story,  J.    And  see  Sedgwick  on  Damages, 
Ch.  II. 


PART  IV.] 


DAJIAGES. 


237 


plained   of,  are  not  the  necessary  result  of  it,  they  are  termed 
special  damages ;  which  the  law  does  not  imply ;  and,  therefore, 


verdict  was  allowed  to  stand,  as  it  appeared 
that  the  jury  had  not  given  more  damages 
than,  upon  computation,  the  plaintiff  had 
actually  sustained.  But  VVoodbury,  J.,  in 
giving  judgment,  referred  to  the  doctrine 
as  stated  in  the  text  of  this  work,  and  in 
3  Am.  Jur.  287-308,  without  disapproha- 
tion ;  and  Sprague,  J.,  with  great  candor 
declared,  that  he  had  become  satisfied  that 
his  ruling  upon  this  point,  at  the  trial, 
was  wrong.  And  it  is  worthy  of  note,  that 
in  a  similar  case,  namely,  an  action  on  the 
case  for  counterfeiting  the  plaintiff 's  trade- 
marks, recently  determined  in  England,  it 
was  held,  that  the  proper  rule  of  damages 
was  the  actual  injury  sustained  by  the 
plaintiff;  and  it  was  observed  by  Coltman, 
J.,  tliat  it  would  not  have  been  at  all  un- 
reasonable for  the  jury  to  have  found  dam- 
ages to  the  amount  of  the  profit  made  by 
the  defendant  upon  the  transaction  in  ques- 
tion. But  there  was  no  intimation  that  it 
was  in  any  view  of  the  case  lawful  to  go 
further.  Rodgers  v.  Nowill,  11  Jur.  1039. 
So,  in  a  later  case,  which  was  trespass 
against  two,  one  of  whom  had  acted  from 
bad  motives,  and  the  other  had  not,  it  was 
held  that  the  damages  ought  not  to  be 
assessed  with  reference  to  the  act  and  mo- 
tives of  the  most  guilty  or  the  most  inno- 
cent, but  accordin'i  to  the  whole  injury  which 
the  plaintiff  had  sustained  from  the  joint 
trespass.  Clark  i'.  Newsam,  1  Exch.  R. 
131.  In  the  Supreme  Court  of  New  York, 
in  Whitney  v.  Hitchcock  (see  10  Law 
Rep.  189,  since  reported  in  4  Denio,  461), 
which  was  case,  by  a  father,  for  an  atro- 
cious assault  and  battery  upon  his  young 
daughter,  the  question  directly  in  judg- 
ment was,  whether,  in  the  case  of  a  wrong 
punishable  criminally,  by  indictment,  the 
piaintifl",  in  a  civil  action  for  the  wrong, 
was  entitled  to  recover  greater  damages 
than  he  could  prove  himself  to  have  sus- 
tained ;  and  the  court,  having  before  it 
such  of  the  foregoing  discussions  as  were 
published  in  the  Law  Rep.  Vol.  9,  pp.  529  - 
542,  decided  that  he  was  not.  The  point 
was  also  incidentally  ruled  in  the  same 
manner  by  Gushing,  J.,  in  Meads  v.  Cush- 
ing,  in  the  court  of  Common  Pk'as  in  Bos- 
ton. See  10  Law  Rep.  238.  In  Austin 
V.  Wilson,  4  Cush.  273,  which  was  an  ac- 
tion on  the  case  for  a  libel,  the  judge  in 
the  court  below  instructed  the  jury  that 
this  was  not  a  case  in  wiiich  exemplary  or 
pitnitive  damages  could  be  given  ;  to  which 
the  plaintiff  took  exception.  The  opinion 
of  the  Supreme  Judicial  Court  on  this 
point  was  delivered  by  Metcalf,  J.,  in  the 
following  terms  :  "  We  are  of  opinfen  that 


the  jury  were  rightly  instructed  that  the 
damages,  in  this  case,  must  be  limited  to 
a  compensation  for  the  injury  received. 
Whether  exemplary,  vindictive,  or  puni- 
tive damages  —  that  is,  damages  beyond  a 
compensation  or  satisfaction  for  the  (ilain- 
tiff 's  injury  —  can  ever  be  legally  awarded, 
as  an  example  to  deter  others  from  com- 
mitting a  similar  injury,  or  as  a  punish- 
ment of  the  defendant  for  his  malignity, 
or  wanton  violation  of  social  duty,  in  com- 
mitting the  injury  which  is  the  subject  of 
the  suit,  is  a  question  ujion  which  we  are 
not  now  required  nor  disposed  to  express 
an  opinion.  The  arguments  and  the 
authorities  on  both  sides  of  the  question 
are  to  be  found  in  2  Greenl.  on  Ev.,  tit. 
Damages,  and  Sedgwick  on  Damages,  39 
et  seq.  If  such  damages  are  ever  recover- 
able, we  are  clearly  of  opinion  that  they 
cannot  be  recovered  in  an  action  for  an 
injury  which  is  also  punishable  by  indict- 
ment ;  as  libel,  and  assault  and  battery. 
If  they  could  be,  the  defendant  might  be 
punished  twice  for  the  same  act.  We  de- 
cide the  present  case  on  this  single  ground. 
See  Thorley  v.  Lord  Kerry,  4  Taunt.  355  ; 
Whitney  v.  Hitchcock,  4  Denio,  461  ;  Tay- 
lor V.  Carpenter,  2  Woodb.  &  Min.  122." 

Tiie  obscurity  in  which  this  subject  has 
been  involved  has  arisen  chiefly  from  the 
want  of  accuracy  and  care  in  the  use  of 
terms,  and  from  a  reliance  on  casual  ex- 
pressions and  obitei-  dicta  of  judges,  as 
deliberate  expositions  of  the  law,  instead 
of  looking  only  to  the  point  in  judgment. 
In  most  of  the  cases  in  which  the  terms 
"  vindictive  damages,"  "  exemplary  dam- 
ages," and  "  smart-money  "  have  been  em- 
ployed, they  will  be  found  to  refer  to  the 
circumstances  which  actually  accompanied 
the  wrongful  act,  and  were  jMrt  of  the  res 
yestce,  and  whicli,  therefore,  thougii  not  of 
themselves  alone  constituting  a  subst.an- 
tive  ground  of  action,  were  proper  subjects 
for  the  consideration  of  the  jury,  because 
injurious  to  the  plaintiff.  When  the  lan- 
guage used  by  judges  in  this  connection  is 
laid  out  of  the  case,  as  it  ought  to  be,  the 
position,  that  criminal  punishment  may 
be  inflicted  in  a  civil  action,  by  giving  to 
the  plaintiff  a  compensation  for  an  injury 
he  never  received,  and  wliich  he  does  not 
ask  for,  will  prove  to  have  little  counte- 
nance from  any  judicial  decision.  The 
contrary  is  better  supported,  both  by  the 
principle  of  many  decisions,  and  by  the 
analogies  of  the  law.  [See  Chubb  v.  Gsell, 
34  Penn.  1 14.]  [*  It  is  held  by  a  majority 
of  the  court  in  Taylor  v.  Church,  8  N.  Y. 
460,  an  action  for  libel,  that  instructions  t» 


238 


LAW   OF  EVIDENCE. 


[part  IV. 


in  order  to  prevent  a  surprise  upon  the  defendant,  they  must  be 
particularly  specified  in  the  declaration,  or  the  plaintiff  will  not 
be  permitted  to  give  evidence  of  them  at  the  trial. ^  But  where 
the  special  damage  is  properly  alleged,  and  is  the  natural  conse- 
quence of  the  wrongful  act,  the  jury  may  infer  it  from  the  princi- 
pal fact.  Thus,  where  the  injury  consisted  in  firing  guns  so 
near  the  plaintiff's  decoy  pond  as  to  frighten  away  the  wild 
fowls,  or  prevent  them  from  coming  there ;  or,  in  maliciously 
firing  cannon  at  the  natives  on  the  coast  of  Africa,  whereby  they 
were  prevented  from  coming  to  trade  with  the  plaintiff;  these  con- 
sequences were  held  to  be  well  inferred  from  the  wrongful  act.^ 

§  255.  In  trials  at  common  law,  the  jury  are  the  proper  judges 
of  damages ;  and  where  there  is  no  certain  measure  of  damages, 
the  court,  ordinarily,  will  not  disturb  their  verdict,  unless  on 
grounds  of  prejudice,  passion,  or  corruption  in  the  jury.^     If  they 


the  jury  that  if  the-  were  satisfied  that  the 
defendant  was  influenced  by  uclual  malice, 
or  a  deliber.".te  intention  to  injure  the 
plaintiff,  they  may  give,  in  addition  to  a  full 
compensation,  "  such  further  damages  as 
are  suited  to  the  aggravated  character 
which  the  act  assumes,  and  as  are  neces- 
sary as  an  example  to  deter  from  the  doing 
of  such  injuries,"  were  correct.  And  the 
principle  is  said  to  be  well  established  in 
English  and  American  courts,  that  the  jury 
may  give  damages,  "  not  only  to  recom- 
pense the  sufferer,  but  to  punish  the  offend- 
er." In  Hunt  v.  Bennett,  19  N.  Y.  174, 
where  the  court  below  charged  the  jury 
that  "the  plaintiff  was  not  only  entitled  to 
recover  to  the  full  extent  of  the  injury  done 
him,  but  a  jury  might  go  further,  and,  if 
the  circumstances  of  the  case  warranted  it, 
increase  the  amount  of  damages  as  a  pun- 
ishment to  the  slanderer,"  the  counsel  for 
the  defendant  was  stopped  by  the  court 
and  informed  that  the  question  had  been 
eettled  against  him  in  that  court  in  unre- 
ported cases,  the  last  of  which  ( Keezeler  v. 
Thompson)  was  decided  in  December,  1857. 
The  whole  court  concurred  in  deeming  the 
question  at  rest.  In  Hopkins  v.  Atlantic 
&  St.  Lawrence  Railw.,  36  N.  H.  9,  an 
action  by  the  husband  for  an  injury  to  the 
wife  through  the  negligence  of  the  compa- 
ny, it  was  held  that  the  jury  may  give  ex- 
emplary damages,  in  their  discretion,  where 
the  injury  was  caused  by  the  gross  negli- 
{jence  of  the  company  in  the  management 
of  their  trains.] 

1  1  Chitty  on  Plead.  328,  346,  347 
(4th  edit.)  ;  Baker  v.  Green,  4  Bing.  317  ; 
Pindar  v.  Wadsworth,  2  East,  154  ;  Arm- 


strong V.  Percy,  5  Wend.  538,  539,  per 
Marcy,  J.;  2  Stark,  on  Slander,  55-58 
[62  -  66,]  by  Wendell  ;  Dickinson  v. 
Boyle,  17  Pick.  78.  In  an  action  for 
breach  of  a  special  agreement  respecting 
the  assignment  of  a  certain  lease  and  fix- 
tures, under  the  allegation  that  the  plain- 
tiff "  had  been  necessarily  put  to  great  ex- 
penses," he  was  permitted  to  give  evidence 
of  charges  which  he  had  become  liable  to 
pay  an  attorney,  and  a  value  for  work 
done  in  respect  to  the  premises  in  question, 
though  the  charges  were  not  paid  until  af- 
ter the  action  was  commenced  Richard- 
son V.  Chassen,  34  Leg.  Obs.  383.  [In  an 
action  of  tort  against  a  corporation  for  a 
personal  injury  by  their  locomotive  engine, 
the  plaintiff's  occupation  and  means  of 
earning  support  are  not  admissible  in  evi 
dence  to  increase  the  damages  if  not  spe- 
cially averred  in  the  declaration.  Baldwin 
V.  Western  R.  R.  Corp.,  4  Gray,  333. 
Whether  such  evidence  would  be  admissi- 
ble in  any  form  of  declaration,  qucere. 
Ibid.  In  an  action  by  a  father  for  the  se- 
duction of  his  daughter,  damages  to  the 
plaintiffs  feelings  may  be  recovered,  though 
not  specially  alleged  in  the  declaration. 
Phillips  V.  Hoyle,  4  Gray,  571.] 

^  Carrington  v.  Taylor,  11  East,  571; 
Keeble  v.  Hickeringill,  Id.  574,  n. ;  11  Mod. 
74,  130  ;  3  Salk.  9  ;  Holt.  14, 17, 19,  S.  C. ; 
Tarleton  v.  McGawlev,  Peake's  Gas.  206. 

3  Gilbert  v.  Birkinsham,  Lofft,  R.  771  , 
Cowp.  230;  Day  v.  Holloway,  1  Jur.  794; 
Kendall  v.  Stone,  2  Sandf.  8.  C.  R.  269 ; 
[or  unless  it  evinces  partiality,  or  a  mis- 
lake  in  principle.  Treanor  v.  Donahoe, 
9  Gush.  228.] 


PART  IV.J  DAMAGES.  239 

are  unable  to  agree,  and  the  plaintiff  has  evidently  sustained  some 
damages,  the  court  will  permit  him  to  take  a  verdict  for  a  nomi- 
nal sum.i  Generally,  in  actions  upon  contract,  where  the  plain- 
tiff fails  in  proving  the  amount  due,  or  the  precise  quantity,  he 
can  recover  only  the  lowest  sum  indicated  by  the  evidence.  Thus, 
where  delivery  of  a  bank-note  was  proved,  but  its  denomination 
was  not  shown,  the  jury  were  rightly  instructed  to  presume  it 
to  be  of  the  lowest  denomination  in  circulation .^  So,  in  assumpsit 
by  a  liquor  merchant,  where  the  delivery  of  several  hampers  of 
full  bottles  was  proved,  but  their  contents  were  not  shown,  the 
jury  were  directed  to  presume  that  they  contained  porter,  that 
being  the  cheapest  liquor  in  which  the  plaintiff  dealt.^ 

§  256.  The  damage  to  be  recovered  must  always  be  the  natural 
and  proximate  consequence  of  the  act  complained  of.  This  rule 
is  laid  down  in  regard  to  special  damage ;  but  it  applies  to  all 
damage.*  Thus,  where  the  defendant  had  libelled  a  performer 
at  a  place  of  public  entertainment,  in  consequence  of  which  she 
refused  to  sing,  and  the  plaintiff  alleged  that  by  reason  thereof  the 
receipts  of  his  house  were  diminished,  this  consequence  was  held 
too  remote  to  furnish  ground  for  a  claim  of  damages.^     So,  where 

^  Feizeu.Thompson.l  Taunt.  121;  [Bond  such  as  would  have  been  realized  by  the 

».  Hilton,  2  Jones,  Law  (N.  C),  149;  Owen  party  from  other  independent  and  coUat- 

r.  O'RielJy,  20  Miss.  (5  Bennett)  603.]  eral  undertakings,  although  entered  into 

2  Lawton  v.  Sweeney,  8  Jur.  964.  in  consequence  and  on  the  faith  of  the  prin- 

*  Clunnes  v.  Pezzy,  1  Campb.  8.  cipal  contract,  then  they  are  too  uncertain 

*  See  Sedgwick  on  Damages,  ch.  iii. ;  and  remote  to  be  taken  into  consideration 
[Post,  §  261  ;  Marble  v.  Worcester,  4  Gray,  as  a  part  of  the  damages  occasioned  by  the 
395  ;  Miller  f.  Butler,  6  Cush.  71  ;  "Wat-  breach  of  the  contract."  By  Bigelow,  J., 
eon  V.  The  Ambergate  Railway  Co.,  3  in  Fox  v.  Harding,  7  Cush.  522  ;  Master- 
Eng.  Law  and  Eq.  497.]  ton  v.  Brooklyn,   7   Hill,  61  ;    Chapin  v. 

6  Ashley  v.  Harrison,  1  Esp.  R.  48  ;  2  Norton,  6  McLean,  500.]  [*  In  Hadley  u. 
Stark,  on  Slander,  pp.  64,  65.  And  see  Baxendale,  9  Exch.  341,  a  leading  case  in 
Armstrong  v.  Percy,  5  Wend.  538,  539,  England,  the  rule  was  laid  down  as  follows 
per  Marcy,  J. ;  Crain  v.  Pctrie,  6  Hill  by  Alderson,  B  :  "  Where  two  parties  have 
(N.  Y.)  R.  522 ;  Downer  v.  Madison  Co.  made  a  contract  which  one  of  them  has 
Bank,  Id.  648.  ["  The  rule  has  not  been  broken,  the  damages  which  the  other  party 
uciform  or  very  clearly  settled  as  to  the  ought  to  receive  in  respect  of  such  breach 
right  of  a  party  to  claim  a  loss  of  profits  of  contract  should  be  such  as  may  fairly 
as  a  part  of  the  damages  for  breach  of  a  and  reasonably  bo  considered  either  aris- 
special  contract.  But  we  think  there  is  a  ing  naturally,  i.  e.  according  to  the  usual 
distinction  by  which  all  questions  of  this  course  of  things,  from  such  breach  of  con- 
sort can  be  easily  tested.  If  the  profits  are  tract  itself,  or  such  as  may  reasonably  be 
such  as  would  have  accrued  and  grown  out  supposed  to  have  been  in  the  contempla- 
of  the  contract  itself,  as  the  direct  and  tion  of  both  parties  at  the  time  they  made 
immediate  results  of  its  fulfilment,  then  the  contract  as  the  probable  result  of  the 
they  would  form  a  just  and  proper  item  of  breach  of  it."  In  this  case  the  plaintiffs, 
damages  to  be  recovered  against  the  delin-  the  owners  of  a  flour-mill,  sent  a  broken 
quentparty  upon  a  breach  of  the  agreement,  iron  shaft  to  an  office  of  the  defendants, 
These  are  part  and  parcel  of  the  contract  who  were  common  carriers,  to  be  conveyed 
itself,  and  must  have  been  in  the  con-  by  them  ;  and  the  defendants'  clerk,  who 
tcmplation  of  the  parties  when  the  agree-  attended  at  the  office,  was  told  that  the 
ment  was  entered  into.    But  if  they  are  mill  was  stopped,  that  the  shaft  must  be 


240 


LAW   OF   EVIDENCE. 


[part  IV. 


the  defendant  asserted  that  the  plaintiff  had  cut  his  master's 
cordage,  and  the  plaintiff  alleged  that  his  master,  believing  the 
assertion,  had  thereupon  dismissed  him  from  his  service ;  it  was 
held,  that  the  discharge  was  not  a  ground  of  action,  since  it  was 
not  the  natural  consequence  of  the  words  spoken. ^  So,  also,  it  has 
been  held  that,  in  assumpsit  for  breach  of  a  promise  to  marry, 
evidence  of  seduction  is  not  admissible,  in  aggravation  of  dam- 
ages.2  And  in  trespass  quare  dauswn  /regit,  for  destroying  the 
plaintiff's  fences,  it  was  held  that  the  measure  of  damages  was  the 
cost  of  repairing  the  fences,  and  not  the  injury  resulting  to  the 
subsequent  year's  crop  from  the  defect  in  the  fences,  long  after 
the  plaintiff  had  knowledge  of  the  fact.^ 

§  257.    In   cases   of  contract,   if  the   parties   themselves   have 


delivered  immediately,  and  that  a  special 
entry,  if  necessary,  must  be  made  to  hasten 
its  delivery ;  and  the  delivery  of  the  broken 
shaft  to  the  consignee  to  whom  it  had 
been  sent  by  the  plaintiffs,  as  a  pattern  by 
which  to  make  a  new  shaft,  was  delayed 
for  an  unreasonable  time ;  in  consequence 
of  which  the  plaintiffs  did  not  receive  the 
new  shaft  until  after  the  time  they  ought 
to  have  received  it,  and  they  were  conse- 
quently unable  to  work  their  mill  from 
want  of  the  new  shaft,  and  thereby  in- 
curred a  loss  of  profits.  Held,  under  the 
circumstances,  such  loss  could  not  be  re- 
covered in  an  action  against  the  defend- 
ants as  common  carriers.  Recognizing 
Hadley  v.  Baxendale  as  the  leading  au- 
thority, it  was  held  in  the  Queen's  Bench, 
Smeed  v.  Ford,  .5  Jur.  (N.  S.)  291, 
where  the  plaintiff,  a  farmer,  contracted 
with  defendant,  an  agent  for  the  sale  of 
thrashing  machines,  for  the  purchase  of  a 
thrashing  machine,  to  be  delivered  on 
the  14th  of  August,  and  defendant  was 
aware  of  the  particular  purpose  for  which 
it  was  ordered,  and  the  machine  was  not 
delivered  on  that  day,  and  plaintiff,  being 
led  by  the  promises  of  defendant  to  expect 
that  it  would  be  delivered  from  day  to 
day,  abstained  from  hiring  it  elsewhere, 
that  plaintiff  was  entitled  to  recover,  in  an 
action  against  defendant,  for  loss  sustained 
by  injury  to  his  wheat  by  a  fall  of  rain, 
and  for  expenses  incurred  in  carting  the 
wheat  and  thatching  it,  and  for  the  cost  of 
kiln-drying  it,  but  not  for  loss  by  a  fall  in 
the  market-price  of  wheat.] 

1  Vickars  v.  Wilcocks,  8  East,  1.  This 
case,  however,  is  said  to  have  been  doubted, 
8  Jur.  876,  jjcr  Parke,  B.  See  also  1 
Smith's  Leading  Cases,  pp.  203  -  304,  and 
cases  there  cited ;  1  Stark  on  Slander,  p. 
205. 


2  Weaver  v.  Bachert,  2  Barr,  R.  230. 
And  see  Hay  v.  Graham,  8  W.  &  S.  27. 
[Loss  of  time  and  expenses  incurred  in 
preparations  for  marriage  are  grounds  of 
damage  directly  incidental  to  a  breach  of 
promise  of  marriage ;  but  they  are  strictly 
incidental,  and  are  not  grounds  of  special 
damage.  Smith  v.  Sherman,  4  Cush. 
414] 

3  Loker  v.  Damon,  16  Pick.  284.  [A 
person  who  puts  a  libel  in  circulation  i3 
liable  to  all  the  natural  and  probable  con- 
sequences of  so  putting  it  in  circulation. 
Miller  v.  Butler,  6  Cush.  71.  Where  a 
horse  drawing  a  vehicle,  and  driven  with 
due  care,  becomes  frightened  and  excited 
by  the  striking  of  the  vehicle  against  a 
defect  in  the  highway,  frees  himself  from 
the  control  of  his  driver,  turns,  and,  at  the 
distance  of  fifty  rods  from  the  defect, 
knocks  down  a  person  on  foot  in  the  high- 
way, and  using  reasonable  care,  the  city  or 
town  obliged  by  law  to  keep  the  high- 
way in  repair  is  not  responsible  for  the 
injury  so  occasioned,  though  no  other 
cause"  intervene  between  the  defect  and 
the  injury.  Marble  v.  Worcester,  4  Gray, 
395.  A  prize  was  offered  for  the  best 
plan  and  model  of  a  certain  machine,  the 
plans  and  models  intended  for  the  compe- 
tition to  be  sent  by  a  certain  day.  The 
plaintiff  sent  a  plan  and  model  by  a  rail 
way  company,  which  by  negligence  did 
not  deliver  the  plan,  &c.,  until  after  the 
appointed  day.  In  such  a  case,  the  prop- 
er measure  of  damages  would  seem  to  be 
the  value  of  the  labor  and  materials  in 
making  the  plan  and  model,  and  not  the 
chance  of  obtaining  the  prize,  this  being 
too  remote  a  ground  for  damaiccs.  Wat- 
son V.  The  Ambergate,  &c.  Railway  Co., 
3  Eng.  Law  and  Eq-  497.] 


PART  IV.J  DAMAGES.  241 

liquidated  the  damages,  the  jury  are  bound  to  find  the  amount 
thus  agreed.  But  whether  the  sum  stipulated  to  be  paid  upon 
breach  of  the  agreement  is  to  be  taken  as  liquidated  damages,  or 
only  as  a  penalty,  will  depend  upon  the  intent  of  the  parties,  to  be 
ascertained  by  a  just  interpretation  of  the  contract.  And  here 
it  is  to  be  observed,  that  the  policy  of  the  law  does  not  regard 
penalties  or  forfeitures  with  favor ;  and  that  equity  relieves  against 
them.  And  therefore,  because,  by  treating  the  sum  as  a  mere 
penalty,  the  case  is  open  to  relief  in  equity,  according  to  the 
actual  damages,  the  sum  will  generally  be  so  considered ;  and 
the  burden  of  proof  will  be  on  him  who  claims  it  as  liquidated 
damages,  to  show  that  it  was  intended  as  such  by  the  parties.^ 
This  intent  is  to  be  ascertained  from  the  whole  tenor  and  sub- 
ject of  that  agreement ;  the  mere  use  of  the  ivords  "  penalty," 
"  forfeiture,"  or  "  liquidated  damages,"  not  being  regarded  as 
at  all  decisive  of  the  question,  if  the  instrument  discloses,  upon  the. 
whole,  a  different  intent.^ 

§  258.  The  cases  in  which  the  sum  has  been  treated  as  a  pen- 
alty will  be  found  to  arrange  themselves  into  five  classes,  fur- 
nishing certain  rules  by  which  the  intention  of  the  parties  is 
ascertained.  (1.)  Where  the  parties,  in  the  agreement,  have 
expressly  declared  the  sum  to  be  intended  as  a  forfeiture,  or  pen- 
alty, and  no  other  intent  is  to  be  collected  from  the  instrum-ent.^ 
(2.)  Where  it  was  doubtful  whether  it  was  intended  as  a  penalty, 
or  not ;  and  a  certain  damage,  or  debt,  less  than  the  penalty,  is 
made  payable,  on  the  face  of  the  instrument.*  (3.)  Where  the 
agreement  was  evidently  made  for  the  attainment  of  another 
object,  to  which  the  sum  specified  is  wholly  collateral.     This  rule 

i  Tayloe  v.  Sandiford,  7  Wheat.  17,  per  damages,  it  must  be  sued  for  in  debt,  or 

Marshall,  C.  J.     Mr.  Evans  seems  to  have  indebitatus  assumpsit.     Davies  v.  Pentou,  6 

been  of  the   contrary   opinion.     2   Poth.  B.  &  C.  221  ;  Bank  of  Columbian.  Patter- 

Obl.    71,    82,   86,   by  Evans.     "Wherever  son,  7  Cranch,  303. 

there  is  an  agreement  to  do  a  certain  thing  ^  Davies  v.  Penton,  6  B.  &  C.  224,  per 
under  a  penalty,  the  obligee  may  either  Littledale,  J. ;  Kimble  v.  Ferren,  6  Bing. 
sue  in  debt  for  the  penalty,  in  which  case  141  ;  2  Story  on  Eq.  §  1318. 
he  cannot  recover  more  than  the  penalty  ^  Astley  v.  Weldon,  2  B.  &  P.  346,  350  ; 
and  interest,  but  may  upon  a  hearing  in  Smith  v.  Dickinson,  Id.  630;  Tayloe  v. 
equity  recover  less;  or,  he  may  sue  in  Sandiford,  7  Wheat.  14 ;  Wilbeam  I".  Ash- 
covenant,  upon  the  agreement,  for  the  ton,  1  Campb.  78 ;  Orr  v.  Churchill,  1  H. 
breach  thereof,  disregarding  the  penalty;  Bl.  227;  Stearns  v.  Barrett,  1  Pick.  45l ; 
in  wliich  case  he  may  generally  recover  Denn  v.  Gumming,  3  Johns.  Cas.  297 ; 
more,  if  he  has  suffered  more.  Harrison  Brown  v.  Bellows,  4  Pick.  179. 
V.  Wright,  13  East,  342  ;  Bird  v.  Randall,  *  Astley  v.  Weldon,  2  B.  &  P.  350,  per 
1  Doug.  373 ;  Winter  v.  Trimmer,  1  Bl.  Ld.  Eldon.  And  see  the  observations  of 
Kep.  395  ;  Astley  v.  Weldon,  2  B.  &  P.  Best,  C.  J.,  in  Crisdee  v.  Bolten,  3  C.  &  P. 
346.     If  the  sum  is  claimed  as  liquidated  240. 

VOL.  U.  16 


242  LAW   OF  EVIDENCE.  [PART  F* 

has  been  applied,  where  the  principal  agreement  was,  not  to  trade 
on  a  certain  coast ;  ^  to  let  the  plaintiff  have  the  use  of  a  certain 
building ;  ^  or,  of  certain  rooms ;  ^  and  not  to  sell  brandy,  within 
certain  limits  ;  *  but  the  difference  between  these  and  some  other 
cases,  which  have  been  regarded  as  liquidated  damages,  is  not 
very  clear.  (4.)  "Where  the  agreement  contains  several  matters 
of  different  degrees  of  importance,  and  yet  the  sum  named  is  payar 
ble  for  the  breach  of  any,  even  the  least.  Thus,  where  the  agree- 
ment was,  to  play  at  Covent  Garden,  and  conform  to  all  the  rules 
of  the  establishment,  and  to  pay  one  thousand  pounds  for  any 
breach  of  them,  as  liquidated  damages,  and  not  as  a  penalty,  it 
was  still  held  as  a  penalty  only.^  (5.)  Where  the  contract  is 
not  under  seal,  and  the  damages  are  capable  of  being  certainly  known 
and  estimated ;  and  this,  though  the  parties  have  expressly  de- 
clared the  sum  to  be  as  liquidated  damages.^ 

§  259.  On  the  other  hand,  it  will  be  inferred  that  the  parties 
intended  the  sum  as  liquidated  damages,  (1.)  Where  the  damages 
are  uncertain,  and  are  not  capable  of  being  ascertained  by  any  satis- 
factory and  known  rule;  whether  the  uncertainty  lies  in  the 
nature  of  the  subject  itself,  or  in  the  particular  circumstances 
of  the  case.  This  rule  has  been  applied,  where  the  agreement  was 
to  pay  a  certain  sum  for  each  week's  neglect  to  repair  a  build- 
ing ;  ^  for  each  year's  neglect  to  remove  a  lime-kiln ;  ®  for  not 
marrying  the  plaintiff;^  for  running  a  stage  on  a  certain  road,  in 
violation  of  contract ;  ^'^  for  breach  of  a  contract  not  to  trade,  or 
practise,  within  certain  limits ;  ^^  and  for  not  resigning  an  office, 

1  Perkins  v.  Lyman,  11  Mass.  76.  equity,  and  to  the  statutes  which  provide 

2  Merrill  v.  Merrill,  15  Mass.  488.  for  relief  against  forfeitures  and  penalties 

3  Sloman  v.  Walter,  1  Bro.  Ch.  C.  418.     in  the  courts  of  common  law. 

*  Hardy  v.  Martin,  1  Bro.  Ch.  419.  ^  Pinkerton  i;.  Caslon,  2  B.  &  Aid.  704; 

5  Kemble  v.  Farren,  6  Bing.  141 ;  Boys  Davies  v.  Penton,  6  B.  &  C.  216  ;  Kandall 

V.  AnccU,  5  Bing.  (N.  C.)  390;  7  Scott,  v.  Everest,  1  M.  &  Malk.  41  ;  Barton  v. 

364 ;  Carrington  v.  Laing,   6   Bing.   242.  Glover,  1   Holt,  Cas.  43 ;  Spencer  v.  Til- 

[*  But  see  Lampman  v.  Cochran,  16  N.  Y.  den,  5  Cow.  144  ;  Graham  v.  Bickham,  4 

275,  as  to  the  rule  when  all  tiie  conditions  Dall.  150. 

are  to  be  performed  simultaneously.  Also  '^  Fletcher  v  Dyche,  2  T.  K.  32. 

21  N.  Y.  253.]     There  arc,  however,  some  ^  Huband  v.  Grattan,  1  Alcock  &  Na- 

cases  in  which  it  has  been  said  that,  where  pier,  R.  389. 

the  parties  expressly  declare  that  the  sum  ®  Lowe  v.  Peers,  3  Burr.  2125 ;    Cock 

is  to    be  taken  as  liquidated  damages,  it  v.  Richards,  10  Ves.  429. 

ehall  be  so  taken.     See  Hasbrouck  v.  Tap-  i°  Leighton  v.  Wales,  3  M.  &  W.  545 ; 

pen,    15  Johns.  200;  Slosson  v.  Beale,  7  Pierce  v.  Fuller,  8  Mass.  223. 

Johns.  72  ;  Reilly  v.  Jones,  1  Bing.  302  ;  "  Noble  v.  Bates,  7  Cow.  309  ;  Smith  v. 

Goldsworthy  v.  Strutt,  35  Leg.  Obs.  540.  Smith,  4  Wend.  468  ;  Crisdee   v.  Bolton, 

But  this  rule,  it  is  conceived,  ought  to  bo  3  C.  &  P.  240.     In  this  case,  the  sum  was 

applied  only  where  the    meaning  is   not  declared  by  the  parties  to  be  liquidated 

otherwise  discoverable ;  since  it  runs  coun-  damages.     Goldsworthy  v.  Strutt,  35  Leg 

ter  to  the  general  policy  of  the  law  of  Obs.  540. 


PART  IV.]  DAMAGES.  243 

agreeably  to  a  previous  stipulation.^  (2.)  Where,  from  the 
nature  of  the  case,  and  the  tenor  of  the  agreement,  it  is  apparent 
that  the  damages  have  already  been  the  subject  of  actual  and  fair 
calculation  and  adjustment  between  the  parties.^  Of  this  sort 
are  agreements  to  pay  an  additional  rent  for  every  acre  of  land 
which  the  lessee  should  plough  up ;  ^  not  to  permit  a  stone  weir 
to  be  enlarged,  "  under  the  penalty  of  double  the  yearly  rent, 
to  be  recovered  by  distress  or  otherwise";*  to  convey  land,  or, 
instead  thereof,  to  pay  a  certain  sum  ;  ^  to  pay  a  higher  rent,  if 
the  lessee  should  cease  to  reside  on  the  premises  ;  ^  that  a  security 
should  become  void,  if  put  in  suit  before  the  time  limited  in  a 
letter  of  license  granted  to  the  debtor  ;7  and  to  pay  a  sum 
of  money  in  goods  at  an  agreed  price.^ 

§  260.  In  the  proof  of  damages,  the  plaintiff  is  not  confined  to 
the  precise  number,  sum,  or  value  laid  in  the  declaration  ;  nor  is 
he  bound  to  prove  the  breach  of  a  contract  to  the  full  extent 
alleged.  Thus,  though  he  cannot  recover  greater  damages  than 
he  has  laid  in  the  ad  damnum  at  the  conclusion  of  his  declaration, 
yet  the  jury  may  find  damages  for  the  value  of  goods  tortiously 
taken,  beyond  the  value  alleged  in  the  body  of  the  count.^  So, 
under  a  count  for  a  total  loss  of  property  insured,  it  is  sufficient 
to  prove  an  average  or  partial  loss.^*'  And  in  covenant,  or  assump- 
sit, proof  of  part  of  the  breach  alleged  is  sufficient  to  entitle  the 
plaintiff  to  recover .^^ 

§  261.  The  measure  of  damages  will,  ordinarily,  be  ascertained 
by  reference  to  the  rule  already  stated ;  namely,  the  natural  and 
proximate   consequences   of  the   act   complained  of.     Thus   the 

1  Legli  V.  Lewis,  cited  2  Poth.  Obi.  85,  «  Ponsonby  v.  Adams,  6  Bro.  P.  C. 
by  Evans.  418. 

2  See  observations  of  Best,  C.  J.,  in  ^  White  v.  Dingley,  4  Mass.  433.  And 
Crisdee  v.  Bolton,  ::  C.  &  P.  240  ;  2  Story  see  Wafer  v.  Mocato,  9  Mod.  113. 

on  Eq.  Jurisp.  §  1318 ;  Leland  v.  Stone,  *  Brooks  v.  Hubbard,  3  Conn.  58.     If 

10  Mass.  459,  462.  the   agreed  price   is   unconscionable,   the 

3  Rolfe  V.  Peterson,  6  Bro.  P.  C.  436 ;  court  will  not  adopt  it  as  the  rule  of  dam- 
Birch  V.  Stephenson,  3  Taunt.  473  ;  Far-  ages.  Cutler  v.  How,  8  Mass.  237  ;  Cut- 
rant  V.  Olmius,  3  B.  &  Aid.  692 ;  Jones  v.  ler  v.  Johnson,  Id.  266  ;  Baxter  v.  Wales, 
Green,  3  Y.  &  J.  298;  Aylet  v.  Dodd,  2  12  Mass.  365. 

Atk.  238:  Woodward  v.  Giles,  2    Vern.  ^  Hutchins  v.   Adams,  3  Greenl.    174; 

119.  Pratt  I'.  Thomas,   1    Ware,  R.  147;    The 

*  Gerrard  v.  O'Reilly,  2  Connor  &  Law-  Jonge  Bastiaan,  5  Rob.  322. 

son,  165.  ^^  Gardiner  v.  Croasdale,  2  Burr.  904;  1 

5  Slosson  V.  Beale,  7  Johns.  72.    And  W.  Bl.  198,  S.  C. ;  Nicliolson  v.  Croft,  2 

see  Hasbrouck  v.  Tappen,  15  Johns.  200;  Burr.  1188,  per  Ld.  Mansfield. 

Reilly  v.  Jones,  1  Bing.  302 ;  Knapp  v.  "  1   Chitty  on  PI.  297  ;  Sayer,  Law  of 

Maltby,  13  Wend.  507  ;  Tingley  v.  Cutler,  Dam.  p.  45 ;  Van  Ransselaer  v.  Platner,  2 

7   Conn.  291 ;   Mead  v.  Wheeler,  13  N.  Johns.  18. 
Hamo.  R  351. 


244 


LAW   OF   EVIDENCE. 


[part  IV. 


drawers  and  indorsers  of  hills  of  exchange^  upon  the  dishonor 
thereof,  are  ordinarily  liable  to  the  holder  for  the  principal  sum 
and  the  common  mercantile  damages,  such  as  interest,  expenses, 
re-exchange,  &c.,  consequent  upon  the  dishonor  of  the  bill.  For, 
having  engaged  that  the  bill  shall  be  paid  at  the  proper  time  and 
place,  the  holder  is  entitled  to  expect  the  money  there ;  and  if  it 
is  not  paid  accordingly,  he  is  entitled  to  re-draw  on  them  for  such 
a  sum  as,  at  the  market  rate  of  exchange  at  the  place,  would  put 
him  in  funds  to  the  amount  of  the  dishonored  bill,  and  interest, 
with  the  necessary  incidental  expenses.^  Upon  a  contract  to  deliver 
goods,  the  general  rule  of  damages  for  non-delivery  is  the  mar- 
ket value  of  the  goods  at  the  time  and  place  of  the  promised  de- 
livery, if  no  money  has  yet  been  paid  by  the  vendee  ;  ^  but  if  the 
vendee  has  already  paid  the  price  in  advance,  he  may  recover  the 
highest  price  of  such  goods  in  the  same  place,  at  any  time  between 
the  stipulated  day  of  delivery  and  the  time  of  trial  .^  If,  in  the 
latter  case,  the  market  price  is  lower  at  the  stipulated  time  of  de- 


1  Story  on  Bills,  §§  399,  400 ;  3  Kent, 
Coram.  115,  116. 

2  Gainsford  v.  Carroll,  2  B.  &  C.  624  ; 
Boorman  v.  Nash,  9  B.  &  C.  145 ;  Shaw 
r.  Nudd,  8  Pick.  9;  Swift  v.  Barnes,  16 
Pick.  194,  196;  Shepherd  v.  Hampton,  3 
Wheat.  200,  204  ;  Douglas  v.  McAllister, 
3  Cranch,  298  ;  Chitty  on  Contr.  352,  n. 
(2),  by  Perkins;  Dey  v.  Dox,  9  Wend. 
129;  [Bank  of  Montgomery  v.  Reese,  26 
Penn.  State  R.  (2  Casey)  143.] 

3  Clark  V.  Pinney,  7  Cow.  681  ;  Chitty 
on  Contr.  352,  n.  (2),  by  Perkins.  But  in 
Massachusetts  the  damages  are  restricted 
to  the  value  at  the  agreed  time  of  delivery. 
Kennedy  v.  Whitwell,  4  Pick.  466  ;  Sar- 
gent V."  Franklin  Ins.  Co.,  8  Pick.  90. 
[*Also  in  Pennsylvania,  White  v.  Tomp- 
kins, 52  Penn.  St.]  In  an  action  for  breach 
of  contract  for  the  sale  of  goods,  it  has  been 
held  that  the  measure  of  damages  is  not 
merely  the  amount  of  difference  between 
the  contract  price  and  the  price  at  which 
the  goods  could  have  been  bought  at  the 
moment  when  the  contract  was  broken, 
but  likewise  a  compensation  for  such  profit 
as  might  have  been  made  by  the  purchaser, 
had  the  contract  been  duly  performed. 
Dunlop  V.  Higgins,  12  Jur.  295;  1  H.  L. 
Ca.  381.  [The  measure  of  damages  in 
the  case  of  a  breach  of  a  contract  to  de- 
liver goods  at  a  specified  time  is  the  differ- 
ence between  the  contract  price  and  the 
market  price  at  the  time  of  the  breach  of 
the  contract,  or  the  price  for  which  the 
vendee  had  sold  ;  but  the  purchaser  cannot 


recover,  as  special  damage,  the  loss  of  an- 
ticipated profits  to  be  made  by  his  vendees. 
Peterson  v.  Ayre,  24  Eng.  Law  &  Eq.  382 ; 
see  Waters  y.  "Towers,  20  lb.  410.  In  an 
action  for  the  price  of  goods,  it  is  not  com- 
petent for  the  plaintiff  to  show  their  value 
for  a  specific  purpose,  but  only  their  mar- 
ket value  at  the  time  and  place  of  delivery. 
Bouton  V.  Reed,  13  Gray,  530.]  But 
where  the  contract  was  for  the  sale  of  real 
estate,  which  the  vendor  was  unable  to 
perform,for  wantof  agood  title  in  himself, 
a  distinction  has  been  taken  between  the 
cases  of  good  and  bad  faith  in  the  vendor; 
it  being  held,  that  where  no  fraud  appears 
on  his  part,  but  all  has  been  bona  fide,  the 
plaintiff  can  recover  only  the  money  paid 
and  interest,  or  his  actual  damages  out  of 
pocket ;  bnt  that,  if  the  vendor  is  chargea- 
ble with  mala  fides,  the  plaintiff  may  re- 
cover for  the  loss  of  his  bargain  ;  namely, 
the  actual  value  of  the  land,  at  the  time 
when  it  ouirht  to  have  been  conveyed. 
Flureau  v.  Thornhill,  2  W.  Bl.  1078  ;  Bi^ 
ner  v.  Brough,  1  Jones,  127.  Idea  quaere. 
[Barbour  v.  Nichols,  3  Rhode  Isl.  87.  A 
carrier  who  at  first  wrongfully  refuses  to 
deliver,  but  afterwards  delivers  goods  con- 
signed to  a  manufacturer,  is  not  liable  for 
consequential  damages  arising  from  delay 
to  the  consignee's  works  caused  by  such 
refusal,  or  for  a  loss  of  profits  from  the 
same  cause ;  bnt  he  is  liable  for  the  ex- 
pense of  sending  to  the  carrier's  office  a 
second  time  for  the  goods.  Waite  v.  Gil- 
bert, 10  Cush.  177.] 


PART  rV.]  DAMAGES.  245 

livery  than  at  the  date  of  the  contract,  the  measure  of  damages  ia 
the  money  advanced,  with  interest.^  So,  upon  a  contract  to  replace 
stock,  the  measure  of  damages  is  the  price  or  value  on  the  day 
when  it  ought  to  have  been  replaced,  or  at  the  time  of  trial,  at 
the  option  of  the  plaintiff.  But  if  afterwards,  and  while  the  stock 
was  rising,  the  defendant  offered  to  replace  it,  the  plamtiff  cannot 
recover  more  than  the  price  on  the  day  of  tender .^  In  an  action 
for  a  breach  of  warranty  upon  the  sale  of  goods,  the  measure  of 
damages  is  the  difference  of  value  between  the  article  in  a  sound 
and  in  an  unsound  state,  without  regard  to  the  price  given.^  And 
generally,  in  other  cases  of  special  contract,  where  one  party  agrees 
to  do  a  certain  thing,  or  to  perform  specific  services,  for  a  stipulat- 
ed sum  of  money,  as,  for  example,  to  perform  a  piece  of  mechani- 
cal work  for  an  agreed  price,  or  to  occupy  a  tenement  for  a  certain 
time  at  a  specified  rent,  and  deserts  the  undertaking  before  it  is 
completed,  or  is  turned  away  and  forbidden  to  proceed  by  the  other 
party,  the  measure  of  damages  is  not  the  entire  contract-price, 
but  a  just  recompense  for  the  actual  injury  which  the  party  has 
sustained.'^  And  in  all  cases  of  breach  of  such  specific  contracts, 
it  is  to  be  observed,  that,  if  the  party  iiyured  can  protect  himself 
from  damages  at  a  trifling  expense,  or  by  any  reasonable  exertions, 
he  is  bound  so  to  do.  He  can  charge  the  delinquent  party  only 
for  such  damages  as,  by  reasonable  endeavors  and  expense,  he 
could  not  prevent.^ 

1  Clark  r.  Pinney,  7  Cow.  681;  Chitty  Heath),  287;  Forman  u.  Miller,  5  McLean, 

on  Contr.  352,  n.  (2),  by  Perkins  ;  Bush  v.  218.] 

Canfield,  2  Conn.  485;  [Barnard  v.  Con-  *  Clark  v.  Marsiglia,  1  Denio,  E.  317, 

ger,  6  McLean,  497  ;  Halseys  v.  Hurd,  lb.  Wilson  v.  Martin,  Id.    602  ;    Spencer  v. 

102  ;  Dana  v.  Fiedler,  2  Kernan  (N.  Y.)  Halsted,  Id.  606.     [Where  there  is  a  spe- 

40 ;  Clark  v.  Dales,  20  Barb.  42.]  cial  contract  to  do  a  piece  of  work,  as  to 

'^  Shepard    v.    Johnson,   2    East,    211  ;  build  a  dam,  and  the  person  agreeing  to 

McArthur  v.  Ld.  Seaforth,  2  Taunt.  257 ;  do  the  work  builds  a  dam,  in  good  faith 

Harrison  v.  Harrison,  1  C.  &  P.  412.    But  and  with  an  honest  intention  of  fulfilling 

in  Massachusetts  the  rule  is  confined  to  the  the  contract,  though  not  according  to  the 

»)rice  at  the  agreed  day  of  transfer,  and  is  contract,  the  damages  are  found  bydeduct- 

lot   extended   to   any  subsequent   period,  ing  from  the  contract-price  so  much  as  the 

}ray  v.   Portland    Bank,   3    Mass.    390.  dam  built  is  worth  less  than  the  dam  con- 

^ Where  a  corporation  refuses  to   give  to  tracted  for.     Gleason  v.  Smith,  9   Cush. 

an  owner  of  shares  therein  certificates  of  486.     Where  there  is  a  deficiency  in  the 

such  shares  on  demand,  or  to  recognize  work,   the  measure    of   damages    is    the 

him  as   the  owner  thereof,  and  sells  the  amount  required  to  be  paid  to  complete 

shares  to  a  third  person,  it  is  liable  to  pay  the  work  according  to  the  contract.     Ibid, 

the  owner  the  value  of  the  shares  at  the  Snow   v.    Ware,    13    Met.   42  ;    Wade   v. 

time  of  his  demand,  and   interest  there-  Haycock,  25   Penn.   State  R.    (1    Casey) 

on  from  the  time  of  the  demand.     Wy-  382.] 

man  v.  American  Powder   Co.,  8  Cush.  ^  Miller  v.   The    Mariner's   Church,  7 

168.]  Greenl.  57.     So,    in   trespass.     Loker  v. 

8  Cotters  V.  Keever,  4  Barr.  168  ;  [Post,  Damon,  17  Pick.  284.     See,  contra,  Heaney 

§  262 ;  Moulton  v.  Scruton,  39  Maine  (4  v.  Heeney,  2  Denio.  R.  625 


246 


LAW   OF  EVIDENCE. 


[part  IV. 


§  261  a  A  distinction,  however,  has  been  taken  between  con- 
tracts for  specific  work  by  the  piece,  and  the  like,  and  contracts  for 
the  hire  of  clerks,  agents,  laborers,  and  domestic  servants  for  a  year 
or  shorter  determinate  period ;  and  it  is  hold  in  the  latter  class  of 
cases  that,  if  the  person  so  employed  is  improperly  dismissed  before 
the  term  of  service  is  expired,  he  is  entitled  to  recover  for  the 
whole  term ;  unless  the  defendant,  on  whom  the  burden  of  proof 
lies,  can  show,  either  that  the  plaintiff  was  actually  engaged  in 
other  profitable  service  during  the  term,  or  that  such  employment 
was  offered  to  him  and  rejected. ^     The  same  principle  has  also 


1  Costigan  v.  M.  &  H.  Railroad  Co.,  2 
Denio,  R.  609.  In  this  case,  which  was 
for  a  full  year's  salary,  where  the  plaintiff 
had  been  improperly  dismissed  after  two 
months'  service,  the  law  was  thus  stated 
by  Beardsley,  J. :  "  As  a  general  principle, 
nothing  is  better  settled  than  tliat  upon 
these  facts  the  plaintiff  is  entitled  to  recover 
full  pay  for  the  entire  year.  He  was  ready 
during  the  whole  time  to  perform  his 
agreement,  and  was  in  no  respect  in  fault. 
The  contract  was  in  full  force  in  favor  of 
the  plaintiff,  although  it  had  been  broken 
by  the  defendants.  In  general,  in  such 
cases,  the  plaintiff  has  a  right  to  full  pay. 
The  rule  has  been  applied  to  contracts  for 
the  hire  of  clerks,  agents,  and  laborers,  for 
a  year  or  a  shorter  time,  as  also  to  the  hire 
of  domestic  servants,  where  the  contract 
may  usually  be  determined  by  a  month's 
notice,  or  on  payment  of  a  month's  wages. 
Tlie  authorities  are  full  and  decisive  upon 
this  subject.  (Chitty  on  Contr.  5th  Am. 
edit.  575-581  ;  1  Chit.  Gen.  Pr.  72-83; 
Browne  on  Actions  at  Law,  181-185, 
504,  505 ;  Beeston  v.  Collyer,  4  Bing. 
309  ;  Fawcett  v.  Cash,  5  Barn.  &  Ad.  904  ; 
Williams  v.  Byrne,  7  Ad.  &  El.  177; 
French  v.  Brookes,  6  Bing.  354  ;  Gandell 
V.  Pontigny,  4  Campb.  375  ;  Robinson  v. 
Hindman,  3  Esp.  235  ;  Smith  v.  Kings- 
ford,  3  Scott,  279  ;  Smith  v.  Hayward,  7 
Ad.  &  El.  544.)  The  rule  of  damages 
against  the  employer  for  the  breach  of  a 
contract  to  perform  mechanical  work  by 
the  piece  is  different.  (See  Clark  v.  Mar- 
siglia,  1  Denio,  317.)  In  no  case  which  I 
have  been  able  to  find,  and  we  were  re- 
ferred to  none  of  that  character,  has  it  ever 
been  held,  or  even  urged  by  counsel,  that 
the  amount  agreed  to  be  paid  should  be 
reduced,  upon  the  supposition  that  the 
person  dismissed  might  have  found  other 
employment  for  the  whole  or  some  part 
of  the  unexpired  term  during  which  he 
had  engaged  to  serve  the  defendant.  And 
yet  this  objection  might  be  taken  in  every 
Buch  case,  and  in  most  of  them  the  pre- 


sumption would  be  much  more  forcible 
than  in  the  case  at  bar.  The  entire  novelty 
of  such  a  defence  affords  a  very  strong,  if 
not  a  decisive  argument  against  its  solidity. 
(The  Duke  of  Newcastle  v.  Clarke,  8 
Taunt.  602.)  Nor  do  I  find  any  case  in 
which  it  was  proved  that  other  employ- 
ment was  offered  to  the  plaintiff  after  his 
dismissal,  and  that  his  recovery  was  defeat- 
ed or  diminished  because  he  refused  to  ac- 
cept of  such  proffered  employment. 

"  It  has,  however,  been  held,  and  rightly 
so,  as  I  think,  that  where  a  seaman,  hired 
for  the  outward  and  .return  voyage,  was 
improperly  dismissed  by  the  captain  be- 
fore the  service  was  completed,  a  recovery 
of  wages  by  the  seaman  for  the  whole  time 
was  proper,  deducting  what  he  had  other- 
wise received  for  his  services  after  his  dis- 
missal and  during  the  time  for  which  his 
employer  was  bound  to  make  payment. 
(Abbott  on  Shipp.  4th  Am.  ed.  442,  443; 
Hoyt  V.  Wildfire,  3  Johns.  518  ;  Ward  v. 
Ames,  9  Id.  138  ;  Emerson  v.  Rowland,  1 
Mason,  22,  51.) 

"And  upon  the  same  principle,  where 
a  merchant  engages  to  furnish  a  given 
quantity  of  freight  for  a  ship,  for  a  partic- 
ular voyage,  and  fails  to  do  so,  he  must 
pay  dead  freight,  to  the  amount  so  agreed 
by  him,  deducting  whatever  may  have 
been  received  from  other  persons  for  freight 
taken  in  lieu  of  that  which  tlie  merchant 
had  stipulated  to  furnish.  (Abbott,  277, 
278;  Puller  v.  Staniforth,  11  East,  232; 
Puller  V.  Halliday,  12  Id.  494  ;  Kleine  v. 
Catara,  2  Gall.  66,  73.)  Upon  this  prin- 
ciple, as  I  understand,  the  case  of  Shannon 
V.  Comstock,  21  Wend.  457,  was  decided. 
The  defendants  there  engaged  to  pay  the 
plaintiffs  fifty-five  dollars  for  the  transpor- 
tation of  a  ceitain  number  of  horses  on 
the  canal  from  Whitehall  to  Albany,  but 
failed  to  comply  with  their  agreement. 
An  action  was  thereupon  brought  to  re- 
cover the  fifty-five  dollars,  and,  the  contract 
and  its  violation  having  been  shown,  '  the 
defendants  offered  to  prove  that  the  dam- 


PART  IV.J 


DAMAGES. 


247 


been  applied  in  suits  for  the  recovery  of  dead  freight,  where  the 
quantity  agreed  to  be  put  on  board  by  the  shipper  has  not  been 
furnished.^ 


ages  sustained  by  the  plaintiffs  did  not 
exceed  five  dollars.'  What  facts  were 
offered  to  be  given  in  evidence  in  order  to 
establish  this  result,  cannot  be  collected 
with  absolute  certaint}''  from  the  report 
of  the  case,  but  it  does  not  appear  that  any 
objection  was  made  to  the  form  of  the  of- 
fer, and  the  report  shows  that  the  evidence 
was  objected  to  and  excluded.  I  infer,  then, 
that  the  offer  of  the  defendants  was  to  show 
by  competent  evidence  that  the  plaintiffs 
took  other  freight  on  board  their  boat  in- 
stead of  their  horses,  so  that  their  loss,  by 
the  violation  of  this  contract,  was  but 
small.  Upon  the  ground  already  stated, 
that  loss  was  the  amount  the  plaintiffs 
were  in  law  and  justice  entitled  to  recover. 
So  this  court  held,  and,  as  the  evidence 
had  been  rejected  in  the  court  below,  the 
judgment  was  reversed.  The  views  of  the 
Chancellor,  as  stated  in  the  case  of  Taylor 
V.  Read,  4  Paige,  571,  are  to  the  same 
effect,  and  the  propriety  of  the  rule  seems 
to  me  too  apparent  to  admit  of  doubt. 

"  In  these  cases  it  appeared,  or  was 
ofiered  to  be  shown,  that  the  plaintiflfe  had 
in  tact  performed  services  for  others,  and 
for  which  they  had  been  paid,  in  lieu  of 
those  they  had  bound  themselves  to  per- 
form for  their  defendants,  and  which  the 
latter  had  refused  to  receive.  lu  Heck- 
Bcher  V.  McCrea,  24  Wend.  304,  the  court 
went  a  step  further.  That  case  arose  in 
the  Superior  Court  of  the  city  of  New 
York,  whei-e  McCrea  was  plaintiff".  It 
was  an  action  for  dead  freight  which  the 
plaintiff  claimed  under  a  special  contract 
with  the  defendants.  They  had  agreed 
with  the  plaintiff  to  furnish  a  given  num- 
ber of  tons  of  freight,  at  a  certain  price, 
for  a  return  cargo  from  China  to  New 
York,  in  the  plaintiff's  ship.  A  part  of 
the  freight  was  furnished  by  the  defend- 
ants, as  agreed,  but  they  fell  short  about 
one  hundred  and  thirty  tons.  The  agents 
for  the  defendants  at  Canton,  where  the 
ship  then  was,  having  no  moi'e  freight  to 
put  on  board  for  the  defendants,  offered  to 
supply  the  deficiency,  from  the  goods  of 

1  Abbott  on  Shipp!  by  Shee,  pp.  242  - 
243 ;  Sedgwick  on  Damages,  p.  377  ; 
Heekschor  v.  McCrea,  24  Wend.  304; 
Shannon  v.  Comstock,  21  Wend.  457. 
[Where  goods  are  wrongfully  taken  from 
a  vessel  by  the  shipper  before  she  has  bro- 
ken ground  on  the  voyage,  the  ship-owner 
is  not  entitled  to  the  stipulated  freight,  as 
such,  but  to  an  indemnity  for  the  breach 
of  the  contract.     And   if  the  vessel  is  a 


other  persons  in  their  hands,  which  tho 
agents  were  authorized  to  ship  to  the  Unit- 
ed States ;  such  shipment  to  be  made  at 
a  reduced,  although  the  then  current  rate, 
but  with  an  express  agreement  that  re- 
ceiving this  freight  on  such  reduced  terms 
should  not  interfere  with  the  original 
agreement  between  the  parties  to  this  suit. 
This  offer  was  declined,  and  to  the  extent 
of  this  deficiency  the  ship  came  home 
empty.  The  action  was  to  recover  for  this 
deficient  freight.  The  court  held  that  the 
plaintiff  should  have  taken  the  freight  of- 
fered, although  at  a  rate  below  what  the 
defendants  had  agreed  to  pay ;  that  so  far 
it  would  have  relieved  the  defendants  with- 
out doing  injury  to  the  plaintiff,  and  by 
which  about  two  thirds  of  the  amount  now 
claimed  might  have  been  saved. 

"  In  all  the  cases  I  have  cited,  the  facts 
on  which  the  delinquent  party  sought  to 
bring  the  amount  to  be  recovered  below 
the  sum  agreed  to  be  paid  were  proved  or 
offered  to  be  proved  on  the  trial.  Nothing 
was  left  to  inference  or  presumption,  and 
it  was  virtually  conceded  that  the  onus  of 
the  defence  rested  on  the  defendant.  They 
are  also  cases  in  which  the  plaintiffs  had 
either  earned  and  received  money  from 
others,  during  the  time  when  they  must 
have  been  employed  in  fulfilling  their  con- 
tract with  the  defendants,  or  in  which  they 
might  have  earned  it  in  a  business  of  the 
same  chai-acter  and  description  with  that 
which  they  had  engaged  with  the  defend- 
ants to  perform. 

"  Tiie  principles  established  by  the  cases 
referred  to  seem  to  me  just,  and,  although 
I  have  found  no  case  in  which  they  have 
been  applied  to  such  an  engagement  as 
tliat  between  these  parties,  still  I  should 
have  no  hesitation,  where  the  facts  would 
allow  it  to  be  done,  to  apply  them  to  such 
a  case  as  this. 

"  But,  first  of  all,  the  defence  set  up 
should  be  proved  by  the  one  who  sets  it 
Tip.  He  seeks  to  be  benefited  by  a  particu- 
lar matter  of  fact,  and  he  should  >  therefore 
prove   the  matter   alleged   by  him.     The 

general  ship,  and  the  goods  removed  form 
only  part  of  her  cargo,  and  the  ship-owner 
is  bound  by  contracts  with  other  shippers 
to  perform  the  proposed  voyage,  and  does 
perform  it,  the  measure  of  damages  is  the 
stipulated  freight,  less  the  substituted 
freight  actually  made,  or  which  might 
have  been  made  by  reasonable  diligence. 
Bailey  v.  Damon,  3  Gray,  92.J 


248 


LAW   OF   EVIDENCE. 


[part  IV. 


§  262.  In  assumpsit  upon  the  warranty  of  goods,  the  measure 
of  damages  is  the  difference  between  the  value  of  the  goods  at  the 
time  of  sale,  if  the  warranty  were  true,  and  the  actual  value  in 
point  of  fact.^  If  goods  are  warranted  as  fit  for  the  particular  pur- 
pose which  they  are  asked  for,  the  purchaser  is  entitled  to  recover 
what  they  would  have  been  worth  to  him  had  they  been  so.^  If 
they  have  been  received  back  by  the  vendor,  the  plaintiff  may  re- 
cover the  whole  price  he  paid  for  them ;  otherwise,  he  may  resell 
them,  and  recover  the  difference  between  the  price  he  paid  and  the 
price  received.^  And  if,  not  having  discovered  the  unsoundness 
or  defects  of  the  goods,  he  sells  them  with  similar  warranty,  and 
is  sued  thereon,  he  may  recover  the  costs  of  that  suit,  as  part  of 
the  damages  he  has  sustained  by  breach  of  the  warranty  made  to 
himself,  if  he  gave  seasonable  notice  of  the  suit  to  the  original 
vendor.'* 

§  263.   In  debt  on  bond,  interest,  beyond  the  penalty,  may  be 


rule  requires  him  to  prove  an  afBrmative 
fact,  whei'cas  the  opposite  rule  would  call 
upon  the  plaintiff  to  prove  a  negative,  and 
therefore  the  proof  should  come  from  the 
defendant.  He  is  the  wrongdoer,  and 
presumptions  between  him  and  the  person 
wronged  should  be  made  in  favor  of  the 
latter.  For  this  reason,  therefore,  the  onus 
must  in  all  such  cases  be  upon  the  defend- 
ant. 

"  Had  it  been  shown,  in  the  case  at  bar, 
that  tlie  plaintiff,  after  his  dismissal,  had 
engaged  in  other  business,  that  might  very 
well  have  reduced  the  amount  which  the 
defendants  ought  otherwise  to  pay.  For 
this  the  cases  I  have  referred  to  would 
furnish  sufficient  authority.  But  here  it 
appears  that  the  plaintiff  was  not  occupied 
during  any  part  of  the  time  from  the  peri- 
od of  dismissal  to  the  close  of  the  year. 

"  Agiun,  had  it  been  shown  on  the  trial 
that  employment  of  the  same  general 
nature  and  description  with  that  which  the 
contract  between  these  parties  contem- 
plated had  been  offered  to  the  plaintiff, 
and  had  been  refused  by  him,  that  might 
have  furnislicd  a  ground  for  reducing  the 
recovery  below  the  stipulated  amount.  It 
should  have  been  business  of  the  same 
character  and  description,  and  to  be  car- 
ried on  in  the  same  region.  The  defend- 
ants had  agreed  to  employ  the  plaintiff  in 
superintending  a  railroad  from  Albany  to 
Schenectady,  and  they  cannot  insist  that 
he  should,  in  order  to  relieve  their  pockets, 
take  up  the  business  of  a  farmer  or  a  mer- 
chant. Nor  could  they  require  him  to 
leave  his  home  and  place  of  residence  to 


engage  in  business  of  the  same  chai'acter 
with  that  in  which  he  had  been  employed 
by  the  defendants." 

1  Caswell  V.  Coare,  1  Taunt,  566; 
Fielder  i;  Starkin,  l"  H.  Bl.  17;  Curtis  v. 
Hannay,  3  P^sp.  8.3  ;  Buchanan  v.  Parn- 
shaw,  2  T.  R.  745 ;  Egleston  v.  Macauly, 
1  McCord,  379 ;  Armstrong  v  Percy,  5 
Wend.  539 ;  [Tuttle  v.  Brown,  4  Gray, 
460;  Reggio  u.  Braggiotti,  7  Cush.  166; 
Goodwin  v.  Morse,  9  Met.  278 ;  Cothers 
V.  Keever,  4  Barr,  168.  The  measure  of 
damages  is  the  same  in  an  action  for  a 
deceit  in  the  sale.  Stiles  v.  White,  11 
Met.  356  ;  Tuttle  v.  Brown,  4  Grav,  460; 
Clare  v.  Maynard,  7  Car.  &  P.  743.] 

'■^  Bridge  v.  Wain,  1  Stark.  R.  604. 
[*  The  defendant  sold  the  plaintiff  a  quan- 
tity of  cabbage  seed,  and  warranted  the 
same  to  be  Bristol  caljbage  seed,  and  that 
such  seed  would  produce  Bristol  cabbages. 
In  an  action  for  a  breach  of  the  warranty 
it  was  lield,  that  the  measure  of  damages 
was  the  value  of  a  crop  of  Bristol  cabbages, 
such  as  ordinarily  woixld  have  been  pro> 
duced  that  year,  deducting  the  expense  of 
raising  the  crop  and  also  the  value  of  the 
crop  actually  raised  from  the  seed  sold. 
Passinger  v.  Thorburn,  34  N.  Y.  634.] 

8  Caswell  V.  Coare,  1  Taunt.  566  ;  Bu- 
chanan V.  Parnshaw,  3  T.  R.  745  ;  Wood- 
ward V.  Thacher,  3  Am.  Law  Jour.  228, 
N.  S. 

*  Lewis  V.  Peake,  7  Taunt.  153;  Arm- 
strong V.  Percy,  5  Wend.  535.  [He  may 
recover  his  taxable  costs,  Coolidge  v. 
Brigham,  5  Met.  72  ;  but  not  counsel  fees, 
Reggio  V.  Braggiotti,  7  Cush.  166.] 


PART  IV.]  DAMAGES.         •  249 

recovered  as  damages.^  If  the  damages  actually  sustained  are 
greater  than  the  penalty  and  interest,  the  only  remedy  is  by  an 
action  of  covenant,  which  may  be  maintained  where  the  condition 
discloses  an  agreement  to  perform  any  specific  act ;  in  which  case, 
if  it  be  other  than  the  payment  of  money,  the  jury  may,  ordinarily, 
award  the  damages  actually  tustained,  without  regard  to  the 
amount  of  the  penalty. 

§  264.  In  an  action  of  covenant  upon  any  of  the  covenants  of  title 
in  a  deed  of  conveyance,  except  the  covenant  of  warranty,  the  or- 
dinary measure  of  damages  is  the  consideration-money,  or  the 
proper  proportion  of  it,  with  interest.^  But  for  breach  of  the  cove- 
nant of  warranty,  though  in  some  of  the  United  States  the  same 
rule  prevails  as  in  covenants  of  title,  yet,  in  others,  the  course  is 
to  award  damages  to  the  value  of  the  land  at  tlie  time  of  eviction. 
In  the  former  States,  the  courts  regard  the  modern  covenant  of 
warranty  as  a  substitute  for  the  old  real  covenant,  upon  which,  in 
a  writ  of  warrantia  chartce,  or  upon  voucher,  the  value  of  the  other 
lands  to  be  recovered  was  computed  as  it  existed  at  the  time  when 
the  warranty  was  made ;  and  accordingly  they  retain  the  same 
measure  of  compensation  for  the  breach  of  the  modern  covenant. 
But  in  the  latter  States,  the  courts  view  the  covenant  as  in  the  na- 
ture of  a  personal  covenant  of  indemnification,  in  which,  as  in  all 
other  cases,  the  party  is  entitled  to  the  full  value  of  that  which  he 
has  lost,  to  be  computed  as  it  existed  at  the  time  of  the  breach.^ 

§  265.   In  general,  as  we  have  already  seen,  damages  are  esti- 

1  Lonsdale  i'.  Church,  2  T.  R.  388;  211,  221;  — and  in  Kentuchy ;  Hanson  v. 
"Wilde  V.  Clarkson,  6  T.  R.  303;  McClure  Buckner,  Dana,  253;  —  and  in  Missouri; 
V.  Dunkin,  1  East,  436;  Francis  v.  Wil-  Tapley  v.  Lebeaume,  1  Mis.  R.  552; 
son,  Ry.  &  M.  105;  Harris  v.  Clap,  1  Martin  v.  Long,  3  Mis.  R.  391  ; — and  in 
Mass.  30S;  Pitts  v.  Tilden,  2  Mass.  118;  Illinois;  Buckmaster  v.  Grundy,  1  Scam. 
Warner  w.  Thurlo,  15  Mass.  154.  310.     In    huiiana,  the   question  has  been 

2  4  Kent,  Comm.  474,  475  ;  Dimmick  v.  raised,  without  being  decided.  Blackwell 
Lockwood,  10  Wend.  142.  v.  Justices   of  Lawrence    Co.,   2   Blackf. 

^  The  consideration-money  and  interest  147. 
is  adopted  as  the  measure  of  damages  in         The  value  of  the  land  at  the  time  of 

New  York :  Statts  v.  Ten  Eyck,  3  Caines,  eviction  has  been  adopted  as  the  measure 

R.  Ill;    Pitcher  v.  Livingston,  4  Johns,  of  damages  in  il/ossac/ii«e«s ;  Gore  y.  Bra- 

1;  Bennett  v.  Jenkins,  13   Johns.    50; —  zier,  3  Mass.    523;    Caswell  v.  Wendell, 

and   in   Pennsylvania;    Bender  v.  From-  4  Mass.  108;  Bigelow  v.  Jones,  Id.  512; 

berger,   4   Dall.  441;  —  and  in   Virginia;  Chapel  v.  Bull,   17  Mass.  213; — and  in 

Stout  V.  Jackson,  2  Rand.  132;  —  and  in  Maine;   Swett  v.  Patrick,  3  Fairf.   1;  — 

North   Carolina;  Cox   v.  Strode,    2    Bibb,  and  iu   Connecticut;    Sterling   v.  Peet,  14 

272;   Phillips   v.  Smith,  1    N.  Car.   Law  Conn.   245;  —  and  in   Vermont;  Drury  v. 

Rei>os.  475  ;  Wilson  v.  Forbes,  2  Dev.  R.  Strong,  D.  Chipm.R.  110  ;  Park  v.  Bates, 

30; — and  in  South  Carolina;  Henning  y,  12   Verm.  481  ; — and  in  Louisiana;  Bis- 

Withers,   2    S.  Car.  Rep.   584 ;  Ware  v.  sell  v.  Erwin,  13  Louis.  R.  143.     See  also 

Weathnall,    2    McCord,    413  ;  —  and    in  4  Kent,  Comm.  474,  475  ;  Rawle  on  Cor 

Ohio :    Backus    v.    McCoy,    3    Ohio    R.  enants  of  Title,  pp.  263  -  280. 


25»J  LAW   OF  EVIDENCE.  [PART  IV. 

mated  by  the  actual  injury  which  the  party  has  received.  But  to 
this  rule  there  are  some  exceptions.  For,  if  the  plaintiff  has  con- 
current remedies,  such  as  trespass  and  trover,  he  may  elect  one 
which,  by  legal  rules,  does  not  admit  of  the  assessment  of  damages 
to  the  extent  of  the  injury.  Thus,  if  he  elects  to  sue  in  trover, 
he  can  ordinarily  recover  no  more  than  the  value  of  the  property, 
with  interest ;  whereas,  if  he  should  bring  trespass,  he  may  re- 
cover not  only  the  value  of  the  goods,  but  the  additional  damages 
occasioned  by  the  unlawful  taking.  And  if  he  waives  the  tort, 
and  brings  assumpsit  for  money  had  and  received,  he  can  recover 
only  what  the  goods  were  actually  sold  for  by  the  defendant, 
though  it  were  less  than  their  real  value. ^  So,  if  the  plain- 
tiff sue  in  debt  for  the  escape  of  a  debtor  in  execution,  he  will  re- 
cover the  whole  amount  of  the  judgment  and  costs,  if  he  recovers 
at  all,  though  the  debtor  were  insolvent ;  whereas,  if  he  sue  in 
trespass  on  the  case,  he  will  recover  only  his  actual  damages.^ 

§  266.  It  is  frequently  said,  that,  in  actions  ex  delicto,  evidence 
is  admissible  in  aggravation,  or  in  mitigation,  of  damages.^  But 
this,  it  is  conceived,  means  nothing  more  than  that  evidence  is  ad- 
missible of  facts  and  circumstances  which  go  in  aggravation  or  in 
mitigation  of  the  injury  itself.  The  circumstances,  thus  proved, 
ought  to  be  those  only  which  belong  to  the  act  complained  of.  The 
plaintiff  is  not  justly  entitled  to  receive  compensation  beyond  the 
extent  of  his  injury,  nor  ought  the  defendant  to  pay  to  the  plain 
tiff  more  than  the  plaintiff  is  entitled  to  receive.^     Thus,  in  tres 

1  See  3  Amer.  Jurist,   p.  288 ;  Lindon  ^  What  is  here  said  on  the  subject  of 

V.  Hooper,  Cowp.  419  ;  Parker  v.  Norton,  e\'idence    in    aggravation    or    mitigation 

6  T.  R.  695  ;  Lamaine  v.  Dorrell,  2  Ld.  of  damages  is  chiefly  drawn  from  a  mas- 

Raym.  1216;  Laugher  v.   Brefitt,  5  B.  &  terly  discussion   of    this   subject  by   Mr. 

Aid.  762 ;  Bull.  N.  P.  32  ;  Jacobv  v.  Lau-  Justice  Metcalf,  in  3  Amer.  Jur.  pp.  287  - 

satt,  6  S.  &  R.  300;  Pierce  v.  Benjamin,  313. 

17  Pick.  356,  361  ;  Barnes  v.  Bartlett,  15  *  "There  would  seem  to  be  no  reason 
Pick.  78;  Otis  v.  Gibbs,  MS.,  cited  15  why  a  plaintiff  should  receive  greater  dam- 
Pick.  207  ;  Whitwell  v.  Kennedy,  4  Pick,  ages  from  a  defendant  who  has  intention- 
466;  Johnson  v.  Summer,  1  Met.  172;  ally  injured  him,  than  from  one  who  has 
Rogers  v.  Crombie,  4  Greenl.  274  ;  [Ante,  injured  him  accidentally,  his  loss  being  the 
§  117,  and  note;  Bartlett  v.  Bramhall,  3  same  in  both  cases.  It  better  accords,  in- 
Gray,  260  ;  Shaw  v.  Becket,  7  Gush.  442.]  deed,   with  our  natural  feelings,  that  the 

-  Bonafous   v.    Walker,   2  T.  R.   126  ;  defendant  should  suffer  more  in  one  case 

Porter  v.  Sayward,  7  Mass.  377  ;  3  Am.  than  in  the  other  ;  but  points  of  mere  sen- 

Jur.  289.     [In  an  action  for  taking  insufii-  sibility  and  mere  casuistry  are  not  allow- 

cient  bail,  the  measure  of  damages  is  the  able  to  operate  in  judicial  tribunals ;  and, 

injury  actually  sustained  by  the  judgment  if  they  were  so  allowed,  still  it  would  be 

creditor;  and  evidence  is  competent  of  the  diificult  to  show  that  a  plaintiff  ought  to 

pecuniary  condition  of  the   debtor   three  receive  a  compensation  beyond  his  injury, 

months  before  he  was  liable  to  be  taken  in  It  would  be  no  less  difficult,  either  on  prin- 

Rxecution.     Danforth  v.  Pratt,  9   Gush,  ciples  of  law  or  ethics,  to  prove  that  a  de- 

318 ;  9  Met.  564.]  fendant  ought  to  pay  more  than  the  plain* 


PART  IV.]  DAMAGES.  251 

pass  on  the  case  for  an  escape,  the  actual  loss  sustained  by  the 
plaintiff  is  the  measure  of  damages,  whether  the  escape  were  vol- 
untary or  negligent ;  and  in  cases  of  voluntary  trespass,  the  inno- 
cent intentions  of  the  party  cannot  avail  to  reduce  the  damages 
below  the  amount  of  the  injury  he  has  inflicted. 

§  267.  Injuries  to  the  person,  or  to  the  reputation,  consist  in  the 
pain  inflicted,  whether  bodily  or  mental,  and  in  the  expenses  and 
loss  of  property  which  they  occasion.  The  jury,  therefore,  in  the 
estimation  of  damages,  are  to  consider  not  only  the  direct  expen- 
ses incurred  by  the  plaintiff",  but  the  loss  of  his  time,  his  bodily 
sufferings,  and,  if  the  injury  was  wilful,  his  mental  agony  also  ;  ^ 
the  injury  to  his  reputation,  the  circumstances  of  indignity  and 
contumely  vmder  which  the  wrong  was  done,  and  the  consequent 
public  disgrace  to  the  plaintiff,  together  with  any  other  circum- 
stances belonging  to  the  wrongful  act,  and  tending  to  the  plain- 
tiff's discomfort.^  And,  on  the  other  hand,  they  are  to  consider 
any  circumstances  of  recent  and  immediate  misconduct  on  the  part 
of  the  plaintiff,  in  respect  to  the  same  transaction,  tending  to  di- 
minish the  degree  of  injury  which,  on  the  whole,  is  fairly  to  be  at- 
tributed to  the  defendant.^  Thus,  if  the  plaintiff  himself  provoked 
the  assault  complained  of,  by  words  or  acts  so  recent  as  to  consti- 

tiff  ought  to  receive.     It  is  impracticable  which  he  has  been  able  to  do  since,  for 

to  make  moral  duties  and  legal  obligations,  the  purpose  of  aiding  the  jury  to  deter- 

or  moral  and  legal  liabilities,  coextensive  mine   what   compensation  he   should    re- 

Thc  same  principle  will  apply  to  the  miti-  ceive  for  his  loss  of  mental  and  pliysical 

gation   of  damages.     If  the  law   awards  capacity.     Ballou   v.  Furnum,    11    Allen, 

damages   for  an   injury,   it   would    seem  73.     See,  on  this  subject,  Wade  v.  Leroy, 

absurd  (even  without  resorting  to  the  deH-  20  How.  43  ;  Nebraska  City  v.  Campbell, 

nition  of  damages)  to  say  that  they  shall  2  Black,  590  ] 

bo  for  a  partonly  of  the  injury."     3  Amer.  ^  Coppin  v.  Braithwaite,  8  Jur.  875. 

Jur.  292,  293.  ^  This  principle  is  freely  applied  in  ac- 

1  If  the  act  were  not  wilfully  done,  it  tions  on  the  case  for  negligence,  where  the 

seems  that  the  mere  mental  suffering  result-  rule  is,  that,  though  thei"e  may  have  been 

ing  from  it  lorms  no  part  of  the  actionable  negligence  on  the  part  of  the  plaintiff,  yet, 

injury.     Flemington  i-.  Smithers,  2  C.  &  P.  unless  he  might,  by  the  exercise  of  ordi' 

292.     And  see  Canning  v.  Williamstown,  nary  care,  have  avoided  the  consequence 

1  Cush.  451.     [Where  an  action  is  brought  of  the   defendant's   negligence,  he  is   en- 

under  a  statute  (9  &  10  Vict.  c.  93),  by  titled    to    recover;    but    if,    by   ordinary 

the  personal  representatives  of  a  deceased  care,  he  might  have  avoided  them,  he  is  the 

person,  to  recover  damages  for  his  death,  author  of  his  own  wrong.    Bridge  p.  Grand 

the  damages  must  be  confined  to  injuries  Junction  Railway  Co.,  3  M.  &  W.  244,  per 

of  which  a  pecuniary  estimate  can  be  made,  Parke,    B. ;    Butterfield   v.   Forrester,    1 1 

and  they  do  not  include  the  mental  suffer-  East,  60  ;  Holding  v.  Liverpool  Gas  Co., 

ing  caused  to  the  sur\'ivors  by  his  death.  10  Jur.  883;  Kennard  u.  Burton,  12  Shepl. 

Blake  i'.  Midland  R.  Co.,  10  ISng.  Law  &  39  ;  New  Haven  Steamboat  Co.  v.   Van- 

Eq.  437.]     [*  In  an  action  to  recover  dam-  derbilt,   16  Conn.  420.     See  §§  220,  230. 

ages   for  a  personal  injury,  the  plaintiff  This   rule   was   ably  and   fully  discussed 

may  introduce  evidence  to  show  the  kind  and  explained   by   Redfield,  J.,  in   Rob- 

and  amount  of  mental  and  physical  labor  inson  v.  Cone,   S.  C.  Verm.  Feb.  Term, 

which  he  was  accustomed  to  do  before  re-  1850.       See    3    Am.    Law    Joura    313 

ceiving  the  injury,  as  compared  with  that  N.  S. 


252  LAW   OF  EVIDENCE.  [PART  lY. 

tute  part  of  the  res  gestce  ;  ^  or  if  the  injury  were  an  arrest  without 
warrant,  and  he  were  shown  to  be  justly  suspected  of  felony ;  ^ 
or,  in  an  action  for  seduction,  if  it  appear  that  the  crime  was  fa- 
cilitated by  the  improper  conduct  or  connivance  of  the  husband  or 
father ;  ^  these  circumstances  may  well  be  considered  as  reducing 
the  real  amount  of  the  plaintiff's  claim  of  damages.* 

§  268.  It  seems,  therefore,  that,  in  the  proof  of  damages,  both 
parties  must  be  confined  to  the  principal  transaction  complained 
of,  and  to  its  attendant  circumstances  and  natural  results  ;  for  these 
alone  are  put  in  issue.  But  where  the  act  complained  of  was  done 
in  the  execution  of  a  contract  with  the  State,  for  a  work  of  public 
benefit,  as,  for  example,  the  taking  of  stone  and  gravel  from  the 
plaintiff's  land,  to  build  a  lock  on  a  public  canal,  which  the  de- 
fendant had  undertaken  to  construct,  the  defendant  is  entitled  to 
stand  in  the  same  position  as  the  State  would,  in  the  estimation  of 
damages,  and  to  set  ofif,  against  the  direct  value  of  the  materials 
taken,  any  general  and  incidental  benefit  resulting  to  the  owner 
of  the  land  from  the  work  to  which  they  were  applied.^ 

§  268  a.  The  natural  results  of  a  wrongful  act  are  understood 
to  include  all  the  damage  to  the  plaintiff  of  which  such  act  was 
the  efficient  cause,  though  in  point  of  time  the  damage  did  not 
occur  until  some  time  after  the  act  done.  Thus,  in  trespass, 
quare  clausum  fregit,  where  the  defendant  had  broken  and  dug 
away  the  bank  of  a  river  in  the  plaintiff's  close,  the  jury  were 
properly  directed  to  assess  the  damages  occurring  three  weeks 
afterwards  by  a  flood,  which  rushed  in  at  the  breach,  and  car- 
ried away  the  soil.^  So,  where  the  trespass  consisted  in  pulling 
down  the  plaintiff's  fence,  whereby  his  cattle  escaped  and  were 
lost ;  it  was  held  that  the  defendant  was  liable  for  the  value  of  the 

^  Lee  V.  Woolsey,  19  Johns.  329  ;  Fra-  put  to  great  expenses,"  it  was  held  compe- 

ser  V.  Berkley,  2  M.  &  Kob.  3 ;  Avery  v.  tent  for  the  plaintiff,  under  this  allegation, 

Ray,  1  Mass.  12.  to  prove  and  recover  for  the  amount  of 

2  Chinn  c.  Morris,  Ry.  &  M,  24  ;  Simp-  bills  whicli  he  hud  become  legally  liable  to 

son  V.  McCaffrey,  13  Ohio  R.  508.  pay,  though   he  had  not  yet  paid  them. 

^  See,  supra,  tit..  Adultery,  §  51.  Richardson  v.  Chassen,  34  Legal  Obs.  883; 

*  [A  person   guilty  of  a  wilful  assault  11  Jur.  890.     And   see  Dixon  v.  Bell,  I 

and  battery  cannot  show   that,  from    the  Stark.  R.  387.     But  in  trespass  for  seizing 

intemperate  hal)its  of  the  other  party,  the  the  plaintiff's  goods  under  color  of  a  jndg- 

injury  was  more  aggravated  than  it  would  ment,  by  means  whereof  he  was  forced  to 

have  been   upon   a  person   of  temperate  pay  large  costs  in  setting  aside  the  judg- 

habits.     11  Cusli.  364.]  ment,  it  was  held,  that  these  costs  were  not 

6  May  y.  Kornhaus,  9  Watts&  Serg.  121.  recoverable.     Holloway  v.  Turner,  9  Jur. 

6  Dickinson  v.  Boyle,  17  Pick.  78.  See,  160;  6  Ad.  &  El.  928,"  N.  S.     So,  counsel 

supra,  §§  55,  56.     In  an  action  of  assump-  fees  have  been  rejected.     Young  v.  Tustin, 

tit,  for  the  breach  of  an  agreement,  where-  4  Blackf.  277. 
by  "  the  plaintiff  has   been  unnecessarily 


PART  IV.]  DAMAGES.  253 

cattle,  as  the  natural  consequence  of  the  trespass.^  And  it  is 
further  to  be  observed,  that  the  proof  of  actual  damages  may 
extend  to  all  facts  which  occur  and  grow  out  of  the  injury,  even 
up  to  the  day  of  the  verdict ;  excepting  those  facts  which  not  only 
happened  since  the  commencement  of  the  depending  suit,  but  do 
of  themselves  furnish  sufficient  cause  for  a  new  action. ^  Upon 
this  general  principle  it  is  that  interest  is  computed  up  to  the 
time  of  tlie  verdict,  in  an  action  for  the  non-payment  of  a  sum 
of  money.  And,  on  the  like  principle,  in  actions  of  trespass  and 
actions  on  the  case,  the  jury  are  sometimes  instructed,  in  their 
estimate  of  damages,  to  include  the  plaintiff's  extra  trouble  and 
expenses  in  prosecuting  his  suit.^ 

§  268  b.  The  damages  may  also,  in  a  certain  sense,  be  prospec- 
tive beyond  the  time  of  trial.  Thus,  in  trespass  for  breaking  the 
plaintiff's  leg,  it  was  held  proper  to  show  the  probable  future  con- 
dition of  the  limb  ;  but  not  the  consequences  of  a  hypothetical 
second  fracture.*  So,  in  an  action  by  the  members  of  a  commer- 
cial firm  for  a  libel  concerning  their  trade,  it  was  held  that  the 
jury  might  estimate  the  damages  likely  to  result  to  their  trade  as 
the  probable  consequences  of  the  slander.^ 

§  269.  The  character  of  the  parties  is  immaterial ;  except  in 
actions  for  slander,  seduction,^  or  the  like,  where  it  is  necessarily 
involved  in  the  nature  of  the  action.  It  is  no  matter  how  bad 
a  man  the  defendant  is,  if  the  plaintiff's  ii^ury  is  not  on  that 
account  the  greater ;  nor  how  good  he  is,  if  that  circumstance 
enhanced  the  wrong.  Nor  are  damages  to  be  assessed  merely 
according  to  the  defendant's  ability/  to  pay ;  for  whether  the  pay- 
ment of  the  amount  due  to  the  plaintiff,  as  compensation  for  the 

1  Damron  v.  Eoach,  4  Humph.  134.  by  himself  in  consequence  of  personal  inju- 

2  "Wilcox  V.  Plummer,  4  Pet.  172,  182;  ries  to  his  son,  is  a  bar  to  a  second  action 
3Com.  Dig.  343,  tit.  Damages,  D.  See  by  the  father  to  recover  for  damages  sus- 
infra,  §  273.  Sedgwick  on  Damages,  pp.  tained  in  consequence  of  the  same  injury, 
106-108.  Johnson  v.  Perry,  2  Humph,  notwithstanding  the  recovery  in  the  first 
572.  action  was  limited  to  damages  which  ac- 

3  Linsley  v.  Bushnell,  15  Conn.  225,  crued  prior  to  the  commencement  of  that 
236  ;  Allen  v.  Blunt,  2  Woodb.  &  M.  121 ;  suit,  and  the  second  action  is  brought  ex- 
Wilt  V.  Vickers,  8  Watts,  227,  235 ;  Rog-  pressly  to  recover  for  loss  of  service  and 
ersy.  Fales,  5  Barr,  159.  See,  confra.  Good  other  damages  sustained  subsequent  to 
V.  Mylin,  8  Barr,  51,  overruling  the  last  that  time.]  [*  Hopkins  v.  Atlantic  &  St. 
two  cases.  Lawrence  Railw.,  36  N.  H.  9 ;  2  Redfield 

*  Lincoln  r.  Saratoga  Railroad  Co.,  23  on  Railways,  220.] 

Wend.  425  ;  Johnson  v.  Perry,  2  Humph.  ^  Gregory  v.  Williams,  1  C.  &  K.  568. 

572 ;  [Curtis  v.  Rochester  and  S.  R.  R.  Co.,  And  see  Ingram  v.  Lawson,  9  C  &   P. 

20  Barb.  282.     In  Whitney  v.  Clarendon,  139,  140,  per  Maule,  J. ;  8  Scott,  471,477, 

18  Veim.  252,  it  was  held  that  a  recovery  S.  C.  per  Bosanquet,  J. ;  Hodsall  v.  Stall 

in  an  action  of  trespass  on  the  case,  brought  brass,  9  C.  &  P.  63. 

by  the  father  to  recover  damages  sustained  ^  See  infra,  §  274 


254  LAW   OF  EVIDENCE.  [PART  IV. 

injury,  will  or  will  not  be  convenient  to  the  defendant,  does  not  at 
all  affect  the  question  as  to  the  extent  of  the  injury  done,  which 
is  the  only  question  to  be  determined.  The  jury  are  to  inquire; 
not  what  the  defendant  can  pay,  but  what  the  plaintiff  ought  to 
receive.^  But  so  far  as  the  defendant's  rank  and  influence  in 
society,  and  therefore  the  extent  of  the  injury^  are  increased  by 
his  wealth,  evidence  of  the  fact  is  pertinent  to  the  issue.^ 

§  270.  Whether  evidence  of  iyitention  is  admissible,  to  affect  the 
amount  of  damages,  will,  in  like  manner,  depend  on  its  materiality 
to  the  issue.  In  actions  of  trespass  vi  et  armis,  the  secret  intention 
of  the  defendant  is  wholly  immaterial.  For  if  the  act  was  volun- 
tarily done,  that  is,  if  it  might  have  been  avoided,  the  party  is 
liable  to  pay  some  damages,  even  though  he  be  an  infant,  under 
seven  years  of  age,  or  a  lunatic,  and  therefore  legally  incapable  of 
any  bad  intention.^  And  where  an  authority  or  license  is  given  by 
law,  and  the  party  exceeds  or  abuses  it,  though  without  intending 
so  to  do,  yet  he  is  trespasser  ab  initio ;  and  damages  are  to  be 
given  for  all  that  he  has  done,  though  some  part  of  it,  had  he 
done  nothing  more,  might  have  been  lawful.^  His  secret  inten- 
tion, whether  good  or  evil,  cannot  vary  the  amount  of  injury  to 
the  plaintiff.  So  it  is,  if  one  set  his  foot  upon  his  neighbor's  land, 
without  his  license  or  permission ;  or  if  he  injure  him  beyond  or 
even  contrary  to  his  intention,  if  it  might  have  been  avoided.^ 
And  where,  to  an  action  of  trespass,  a  plea  of  per  infortunium  was 
pleaded  in  bar,  it  was  held  bad,  on  demurrer,  the  court  declaring 
that  damages  were  recoverable  "  according  to  the  hurt  or  loss."  ^ 
In  all  such  cases  of  voluntary  act,  the  intent  is  immaterial,  the 

1  See  Loffi,  K.  774,  Ld.  Mansfield's  allu-  Olliot,  T.  Ravm.  467;  Gilbert  v.  Stone, 
sion  to  Berkeley  v.  Wilford.  See  also  Aleyn,  35 ;  Sty.  72,  S.  C.  ;  Sikes  v.  John- 
Stout  V.  Sprall,  Coxe,  N.  J.  Rep.  80 ;  Co-  son,  16  Mass.  289  ;  Bingham  on  Infancy, 
rycll  V.  Colbaugh,  Id.  77,  78;  6  Conn.  R.  pp.  110,  111  ;  3  Com.  Dig.  627,  tit.  En- 
27  ;  supra,  §  265.  [How  far  the  plaintiff's  fant,  D.  4  ;  Macpherson  on  Infants,  p.  481  ; 
occupation  and  means  of  earning  support  Shelford  on  Lunatics,  p.  407 ;  Stock  on 
are  admissible  to  increase  the  damages  Non  Compotes  Mentis,  p.  76  ;  3  Am.  Jur 
in  an  action  for  an  injury  to  the  person  291,  297. 

under  any  form  of  dechiration,  qiKxre.  *  Six  Carpenters'  case,  8  Co.  146 ;  Bag- 
Baldwin  V.  Western  R.  R.  Corp.  4  Gray,  shaw  v.  Gaward,  Yelv.  96 ;  Sackrider  v. 
334.]  McDonald,  10  Johns.  253,    256;   3   Am. 

2  Bsnnett  v.  Hyde,  6  Conn.  R.  24,  27 ;  Jur.  297,  298 ;  Keibey  v.  Denby,  I  M.  & 
Shute  i;.  Barrett,  7  Pick.  86,  per  Parker,  W.  336. 

C.  J.    See,  supra,  §  89  ;  infra,  §§  424,  579  ;  6  Russell  v.  Palmer,  2  Wils.  325  ;  Varill 

Grabo  v.  Margrave,  3  Scam.  372 ;  Rccd  v.  v.  Heald,  2  Grccnl.  92,  per  Mellcn,  C.  J. ; 

Davis,  4  Pick.  216;  McNamara  v.  King,  Brooks  v.  Hoyt,  6  Pick.  468;  Bacon's  Ele- 

2  Gilm.   432  ;   McAlmont  v.  McClelland,  ments,  p.  31  ;  2  East,  104,  per  Ld.  Ken- 

14  S.  &  R.  359;  Lamed  v.  Bulfington,  3  yon. 

Mass.  546.  6  Weaver  v.  Ward,  Hob.  134. 
^  Weaver  v.  Ward,  Hob.  134  ;  Bessevv. 


PART  IV.]  DAMAGES.  .  255 

only  question  being,  whether  the  act  was  injurious,  and  to  what 
extent.^ 

§  271.  In  certain  other  actions,  such  as  case  for  a  malicious 
prosecution,^  or  for  false  representatio7is  of  another  person's  credit 
in  order  to  induce  one  to  trust  him,^  or  for  slander,  the  intention 
of  the  defendant  is  of  the  gist  of  the  action,  and  must  therefore  be 
shown  to  be  malicious  ;  not  to  affect  the  amount  of  damages,  but 
to  entitle  the  plaintiff  to  recover  any  damages  whatever.  Thus, 
in  an  action  for  a  libel,  either  party  may  give  evidence  to  prove  or 
disprove  the  existence  of  a  malicious  intent,  even  though  such 
evidence  consist  of  other  libellous  writings ;  but  if  they  contain 
matter  actionable  in  itself,  the  jury  must  be  cautioned  not  to  in 
crease  the  damages  on  account  of  them.* 

§  272.  But  where  an  evil  intent  has  manifested  itself  in  acts 
and  circumstances  accompanying  the  principal  transaction,  they 
constitute  part  of  the  injury,  and,  if  properly  alleged,  may  be 
proved,  like  any  other  facts  material  to  the  issue.  Thus  in  tres- 
pass for  taking  goods,  besides  proof  of  their  value,  the  inconven- 
ience and  injury  occasioned  to  the  plaintiff  by  taking  them  away, 
under  the  particular  circumstances  of  the  case,  and  the  abusive 
language  and  conduct  of  the  defendant  at  the  time,^  are  admissi- 
ble in  evidence  to  the  jury,  who  may  give  damages  accordingly. 
And  evidence  of  improper  language  or  conduct  of  the  defendant 
is  also  admissible,  under  proper  allegations,  in  an  action  of  tres- 
pass on  the  case,  or  of  trespass  quare  clausum  fregit,  as  constitut- 
ing part  of  the  injury.^     And,  generally,  whenever  the  wrongful 

1  Underwood  v.  Hewson,  1  Stra.  596 ;  ^  Churchill  v.  Watson,  5  Day,  140 ; 
I  Chittv  on  Plead.  120;  Weaver  v.  "Ward,  Tilden  v.  Metcalf,  2  Day,  259;  Johnson 
Hob.  134;  Taylor  v.  Rainbow,  2  Hen.  &  v.  Courts,  3  Har.  &  McHen.  510;  Ratlitf 
Munf.  423  ;  Wakemanv.  Robinson,  1  Bing.  v.  Huntley,  5  Ired.  545;  Wilkins  v.  Gil- 
213.  The  rule  is,  that,  under  the  general  more,  2  Humph.  140;  Huxley  v.  Berg,  I 
issue,  any  evidence  is  admissible  which  Stark.  R.  98;  Curtis  v.  Hoyt,  19  Conn. 
teudri  to  sliow  that  the  accident  resulted  154,  170;  Huntley  v.  Bacon,  15  Conn. 
entirely  from  a  superior  agency  ;  for  then  267,  273. 

it  was  no  trespass ;  but  that  any  defence  ®  Bracegirdle  v.  Orford,  2  M.  &  S.  77 ; 

which  admits  that  the  trespass  complained  Coppin  v.  Braithwaite,  8  Jur.  875  ;  Cox  v. 

of  was  the  act  of  the  defendant  must  be  Dougdale,  12   Price,  708,  718;  Merest  ». 

specially  pleaded.     Hall  v.  Fearnley,  3  Ad.  Harvey,  5  Taunt.  442.     In  this  case,  Gibbs, 

6  El.  919,  N.  S.  C.  J.,  expressed  himself  in  these  terms : 

2  1  Chitty  on  PI.  405  (7th  edit.) ;  Sut-  "I  wish  to  know,  in  a  case  where  a  man 
ton  V.  Johnstone,  1  T.  R.  493,  545 ;  3  disregards  every  principle  which  actuates 
Am.  Jur.  295 ;  Stone  v.  Crocker,  24  Pick  the  conduct  of  gentlemen,  what  is  to  re- 
81,  83  ;  Grant  v.  Duel,  3  Rob.  (Louis.)  R.  strain  him  except  large  damages  1  To  be 
17.  sure,  one  can  hardly  conceive  worse  con- 

3  "Vernon  v.  Keyes,  12  East,  632,  636;  duct  than  this.  What  would  be  said  to  a 
Young  V.  Covell,  8  Johns.  23.  person  in  a  low  situation  of  life,  who  should 

*  Pearson  v.  Lemaitre,  5  M.  &  G.  700;     behave  hiiiisclf  in  this  manner?     I  do  not 

7  Jur.  748  know  ui)ou  what  principle  we  can  grant  a 


256  LAW   OF  EVIDENCE.  [PART  IV. 

act  of  the  defendant  was  accompanied  by  aggravating  circum- 
stances of  indignity  and  insult,  whether  in  the  time,  place,  or 
manner,  though  they  may  not  form  a  separate  ground  of  action, 
yet  being  properly  alleged,  they  may  be  given  in  evidence,  to  show 
the  whole  extent  and  degree  of  the  injury.^  Thus,  in  an  action 
upon  an  agreement  to  carry  the  plaintiff  to  a  certain  place,  assign- 
ing a  breach  in  causing  him  to  be  disembarked  at  an  intermediate 
place,  in  a  disgraceful  manner  and  with  contemptuous  usage  and 
insulting  language,  whereby  he  sustained  damage ;  it  was  held 
that  the  allegation  was  proper,  and  that  evidence  of  such  circum- 
stances was  rightly  received.^  So,  also,  where  to  an  action  of 
trespass  for  false  imprisonment  the  defendant  pleaded,  by  way  of 
justification,  that  the  plaintiff  had  committed  a  felony,  but  aban- 
doned the  plea  at  the  trial,  and  exonerated  the  plaintiff  from  the 
charge,  it  was  held  that  the  jury  might  lawfully  consider  the  put- 
ting of  such  a  plea  on  the  record  as  persisting  in  the  charge,  and 
estimate  the  damages  accordingly.^  So,  where  in  an  assault  and 
battery  the  defendant  avowed  an  intent  to  kill  the  plaintiff.^ 
And,  on  the  other  hand,  the  defendant  may  show  any  other 
circumstances  of  the  transaction,  in  mitigation  of  the  injury  done 
by  his  trespass.  Thus,  where  the  defendant  shot  the  plaintiff's 
dog  soon  after  he  had  been  worrying  the  defendant's  sheep,  this 
fact,  and  the  habits  of  the  animal,  were  held  admissible  in  evi- 
dence for  the  defendant  in  the  estimation  of  damages.^  And  in 
trespass  de  bonis  asportatis  he  may  show  that  the  goods  did  not 
belong  to  the  plaintiff,  and  that  they  have  gone  to  the  use  of  the 
owner ;  ^  or  that,  belonging  to  the  plaintiff,  they  have  lawfully 
gone  to  his  use.'^     So,  where  the  defendant  had  seized  and  de- 

rnle  in  this  case,  unless  we  were  to  lay  it  damages  may  be  recovered  for  the  interrnp- 

down  that  the  jtiry  are  not  justified  in  giving  tion  of  the  use  of  the  mill.     White  v.  Mose- 

more  than  tlie  absolute  pecuniary  damage  ley,  8  Pick.  356. 

that  the  plaintiff  may  sustain.     Suppose  a  i  Sears  v.  Lyons,  2  Stark.  R.  282  [.317]  ; 

gentleman  has  a  paved  walk  in  his  pad-  3  Am.   Jur.    30.3,   312;  3   Wils.    19,    per 

dock,  before  his  window,  and  that  a  man  Bathurst,  J. ;  Woert  v.  Jenkins,  14  Johns, 

intrudes  and  walks  up  and  down  before  352;  Pratt  ik  Ayler,  4  H.  &  J.  448;  Jcn- 

the  window  of  his  house,  and  looks  in  while  nings  w.  Maddox,  8  B.  Monr.  432;  Dun- 

the  owner  is  at  dinner,  is  the  trespasser  to  can  v.  Stalcup,  1  Dev.  &  Bat.  440. 

be  permitted  to  say,  '  Hero  is  a  half-penny  ^  Coppin  v.   Braithwaitc,    8   Jur.    875, 

for  you,  which  is  the  full  extent  of  all  the  And  see  Kccne  v.  Lizardi,  8  Louis.  33. 

mischiefs  I  have  done  '  ■?     Would  that  be  ^  Warwick  v.  Foulkcs,  12  M.  &  W.  507. 

a   compensation  ?     I   cannot   say   that   it  *  Pratt  v.  Aylcr,  4  H.  &  J.  448. 

would    be."     5   Taunt.  443.     In   trespass  <>  Wells  v.  Head,  4  C.  &  P.  568. 

for  entering  the  plaintiff's  house,  evidence  ^  Squire  r.   Hollenbcck,    9   Pick.    551. 

may  be  given  of  keeping  the  plaintiff  out,  And  see  Pierce  v.  Benjamin,  14  Pick.  36L 

for  that  is  a  consequence  of  the-  wrongful  ^  Kaleyi?.  Shed,  10  Met.  317.    See,infra, 

entry.      Sampson  v.   Coy,   15  Mass.  493.  §§  276,    635  a}    Anthony  v.  XJibbert,    4 

So,  in  trespass  for  destroying  a  mill-dam,  Blackf.  348. 


PART  IV.J  DAMAGES.  257 

stroyed  the  plaintiff's  game-cocks,  under  a  warrant  to  search  for 
gaming  implements,  it  was  held,  that  the  jury  might  consider,  in 
mitigation  of  the  injury,  the  good  motives  of  the  defendant,  and 
his  belief  that  he  was  acting  in  the  due  execution  of  legal  pro- 
cess ;  in  which  case  the  measure  of  damages  was  the  actual  value 
of  the  animals,  as  articles  of  merchandise.^ 

§  273.  It  may  here  also  be  remarked,  that  if  the  defendant, 
while  he  is  an  actual  trespasser  in  the  plaintiff's  house  or  close, 
commit  any  other  acts  of  trespass  against  the  person  of  the  plaintiff, 
his  wife,  children,  or  servants,  these  acts  and  their  consequences 
may  be  alleged  and  proved  in  an  action  of  trespass  quare  clausum 
fregit^  as  matter  in  aggravation  of  the  injury .^  It  is  on  this 
ground  that  the  plaintiff,  in  an  action  of  trespass  for  breaking  and 
entering  his  house,  has  been  permitted  to  allege  and  recover  full 
damages  for  the  debauching  of  his  daughter  and  servant.  It 
makes  no  difference  that  the  plaintiff  may  have  a  separate  action 
for  these  additional  wrongs,  provided  it  be  an  action  of  trespass,. 
or  of  trespass  on  the  case;  and  not  a  remedy  in  another  form. 
If  he  sues  in  trespass,  and  alleges  the  debauching  of  his  servant  in 
aggravation,  the  breach  and  entry  of  the  house,  being  the  princi- 
pal fact  complained  of,  must  be  proved,  or  the  action  will  not  be 
maintained.^  And  so  it  is  in  regard  to  any  other  consequential: 
damages  alleged  in  an  action  of  trespass ;  for  wherever  the  prin- 
cipal trespass,  namely,  the  entry  into  the  house  or  close,  is  justi- 
fied, it  is  an  answer  to  the  whole  declaration.^ 

§  274.  But,  though  the  plaintiff  may  generally  show  all  the 
circumstances  of  the  trespass  tending  in  aggravation  of  the  injury, 
it  does  not  therefore  follow,  that  the  defendant  may^  in  all  cases, 
show  them  in  mitigation ;  for  he  may  preclude  himself  by  his  mode 
of  defence,  as  well  as  the  plaintiff  may,  as  we  have  already  seen, 
by  his  election  of  remedy.     Thus,  it  is  a  sound  rule  in  pleading, 

1  Coolidge  V.  Choate,  9  Law  Eep.  205  ;  ter  of  aggravation.  1  Chitty  on  Plead. 
11  Met.  79.  See  also  Reed  v.  Bias,  8  347,  348;  Anderson  v.  Buckton,  1  Stra. 
Watts  &  Serg.  189;  Conard  r.  Pacific  Ins.  192;  Heminway  i'.  Saxton,  3  Mass.  222; 
Co.,  6  Pet.  262,  282.  Sampson  v.  Coy,  15  Mass.  493.     But  the 

2  Bennett  v.  Alcott,  2  T.  R.  166;  Sha-  proof  must  be  restricted  to  damages  result- 
fer  v.  Smith,  7  H.  &  J.  68.  ing  to  the  plaintiff  alone,  and  not  to  an- 

^  Bennett  v.  Alcott,  2  T.  R.  166 ;  Ream  other,  nor  to  himself  jointly  with  another. 

V.  Rank,  3  S.  &  R.  215;  2  Stark.  Ev.  813  ;  Edmonson   v.   Machell,  2  T.  R.  4.     See 

3  Am.  Jur.  298 ;  Dean  v.  Peale,  5  East,  supra,  §  268. 

45  ;  Woodward  v.  Walton,  2  New  R.  476 ;  *  Tavlor  v.  Cole,  3  T.  R.  292  ;  1  H.  BI. 

I     Smith's    Leading    Cases   [219],    (Am.  555;    Bennett  v.   Alcott,   2   T.   R.    166; 

edit.)  notes.      See  43  Law  Lib.  328,  330.  Monprivatt    v.    Smith,    2    Campb.    175; 

Any  other  consequential  damage   to   the  Phillips  v.  Howgate,   5  B.  &  Aid  "220; 

plaintiff  may  be  alleged  and  proved  as  mat-  Ropes  v.  Barker,  4  Pick.  239. 

VOL.  II.  17 


258  LAW   OF  EVIDENCE.  [PART  IV. 

that  matter  which  goes  in  complete  justification  of  the  charge 
must  be  specially  pleaded,  in  order  that  the  plaintiff  may  be  pre- 
pared to  meet  it ;  and  cannot  be  given  in  evidence  undei  the  gen- 
eral issue,  for  this  would  be  a  surprise  upon  him.^  If,  therefore, 
the  defendant  pleads  the  general  issue,  this  is  notice  to  the  plain- 
tiff that  he  has  nothing  to  offer  in  evidence  which  amounts  to  a 
justification  of  the  charge ;  and  hence  no  evidence  of  matter  which 
goes  in  justification  will  be  received,  even  in  mitigation  of 
damages.  Thus,  in  trespass  for  an  assault  and  battery,  where  the 
defendant,  under  the  general  issue  offered  to  prove  that  the  beat- 
ing was  inflicted  by  way  of  correcting  the  misconduct  of  the  plain- 
tiff, who  was  a  seaman  on  board  the  ship  of  which  the  defendant 
was  master,  the  evidence  was  held  inadmissible ;  and  the  jury 
were  instructed,  that  they  could  neither  increase  the  damages 
beyond  a  compensation  for  the  injury  actually  sustained,  nor  les 
sen  them  on  account  of  the  circumstances  under  which  the  beat- 
ing was  given.2  And  in  trespass  by  an  apprentice  against  his 
master,  for  an  assault  and  battery,  the  defendant  cannot,  under 
this  issue,  give  evidence  of  an  admission  by  the  plaintiff,  that  his 
master  had  beaten  him  for  misconduct.^  So,  in  an  action  of 
slander,  the  defendant  cannot,  under  the  general  issue,  give  the 
truth  of  the  words  in  evidence,  even  in  mitigation  of  damages  ;  * 
nor  can  he,  for  this  purpose,  show  that  the  plaintiff  has  for  a  long 
time  been  hostile  to  him,  and  has  proclaimed  that  he  did  not  wish 
to  live  with  him  on  terms  of  peace. ^ 

§  275.  In  actions  of  slander,  it  is  well  settled  that  the  plaintiff's 
general  character  is  involved  in  the  issue  ;  and  that  therefore  evi- 
dence, showing  it  to  be  good  or  bad,  and  consequently  of  much  or 
little  value,  may  be  offered  on  either  side  to  affect  the  amount  of 
damages.^     But  whether  the  defendant  will  be  permitted,  under 

1  Co.  Lit.  282  h,  283  a  ;  1  Chitty  on  he  may  offer  such  evidence,  in  proof  that 
Plead.  415;  Trials  per  Pais,  p.  403  (6th  the  words  charged  were  spoken  malicious- 
edit.) ;  3  Amer.  Jur.  301  ;  Watson  y.  Chris-  ly.  See  3  Am.  Jur.  293,  294  ;  2  Stark, 
tie,  2  B.  &  P.  224,  and  note  (a).  on  Slander,   pp.  48-51    [54-57],  Wen- 

2  Watson   V.  Christie,  2  B.  &  P.  224 ;  dell's  edit. 

Bull.   N.  P.  16  J  1  Salk.  11,  per  Holt,  C.  ^  Andrews  v.  Bartholomew,  2  Met.  509, 

J.  <5  2  Stark  on  Slander,  pp.  77  -  86  [88  - 

8  Pujolas  V.  Holland,  1  Longf.  &  Towna.  97],  by  Wendell;  3  Am.  Jur.  294,   295; 

177.  Wolcott  V.  Hall,  6  Mass.  514,  518.     If  tho 

*  Underwood  v.  Parkes,  2  Stra.  1200;  declaration   states   that   the  plaintiff  had 

MuUett  V.  Hulton,  4  Esp.  248  ;  1   Chitty  never  been  suspected  to  be  guilty  of  the 

on   Plead.   433  ;    Shepard    v.   Merrill,   13  crime  imputed  to  him,  the  defendant,  un- 

Johps.  475.     Nor  can  the  plaintiff  prove  der  the  general  issue,  may  show  that  he 

the  speaking  of  other  slanderous  words,  was  so  suspected,  and  that  in  consequence 

in  aggravation  of  the   damages;  though  of  such   suspicions  his  relatives  and   ac- 


PART  IV.J  DAMAGES.  259 

the  general  issue,  to  prove  general  suspicions^  and  common  reports 
of  the  guilt  of  the  plaintiff,  in  mitigation  of  damages,  is  not  uni- 
versally agreed.!  j^  seems,  however,  that,  where  the  evidence 
goes  to  prove,  that  the  defendant  did  not  act  wantonly  and  under 
the  influence  of  actual  malice,  or  is  offered  solely  to  show  the  real 
character  and  degree  of  the  malice,  which  the  law  implies  from 
the  falsity  of  the  charge,  all  intention  of  proving  the  truth  being 
expressly  disclaimed,  it  may  be  admitted,  and  of  course  be  consid- 
ered by  the  jury .2  Evidence  of  any  misconduct  of  the  plaintiff ^ 
giving  rise  to  the  charge,  such  as  an  attempt  by  him  to  commit  the 
crime^  or  opprobrious  language  addressed  by  him  to  the  defendant, 
either  verbally  or  in  writing,  contemporaneously  with  the  charge 
complained  of,  or  tending  to  explain  its  meaning,  may  also  be 
shown  in  mitigation  of  damages.*  So,  if,  through  the  misconduct 
of  the  plaintiff,  the  defendant  was  led  to  believe  that  the  charge 
was  true,  and  to  plead  in  justification  accordingly,  this  may  be 
shown  to  reduce  the  damages.^  And  if  the  charge  was  made  un- 
der a  mistake,  upon  discovering  of  which  the  defendant  forthwith 
retracted  it  in  a  public  and  proper  manner,  and  by  way  of  atone- 
ment, this  also  may  be  shown  in  evidence,  for  the  same  purpose. 
So,  the  extreme  youth  or  partial  insanity  of  the  defendant  may  be 
shown,  to  convince  the  jury  that  the  plaintiff  has  suffered  but  lit- 
tle injury.'' 

quaintance  had  ceased  to  visit  him.     Earl  *  Hotchkiss  v.  Lathrop,  1  Johns.  286 

of  Leicester  v.   Walter,   2    Campb.    251.  May  i;.  Brown,  3  B.  &  C.  113  ;  Wakley  w 

[*  It  is  held  in  Burnett  v.  Simpkins,   24  Johnson,  Ry.  &  M.  422 ;  Child  v.  Homer, 

111.  264,  that  the  previous  bad  conduct  of  13  Pick.  503  ;    Lamed  v.   Buffington,   3 

the  woman  may  be  shown  in  evidence  in  Mass.  553  ;  "Watts  v.  Frazer,  7  Ad.  &  El. 

mitigation  of  damages  for  breach  of  prom-  223;    Beardsley    v.   Maynard,   4    Wend, 

ise  of  marriage.]  336;  7  Wend.  560;  Gould  v.  Weed,  12 

1  In  England,  and  in  Connecticut,  Penn-  Wend.  12 ;  Davis  v.  Griffith,  4  G.  &  J. 
sylvania,   Maryland,   Kentucky,    and  South  342. 

Carolina,  such  evidence  is  admissible.     In         ^  Lamed  v.   Buffington,   3  Mass.  546. 

Massachusetts,  New  York,  and  Virginia,  it  But  see  Alderman  v.  French,  1  Pick.  1, 

is  not.     See  2  Stark,  on  Slander,  p.  84,  19.     The  foct  of  the   defendant's   taking 

note  (1 ),  by  Wendell ;  Wolcott  v.  Hall,  6  depositions  to  prove  the  truth  of  the  words, 

Mass.  514 ;  Alderman  v.  French,  1  Pick,  and  afterwards  declining  to  justify  them, 

1;  Bodwell  v.  Swan,  3  Pick.  376;  Root  is  inadmissible  in  evidence  for  the  plaintiff, 

r.  King,  7  Cowen,  613  ;  Matson  v.  Buck,  to  enhance  the  damages.     Boswell  v.  Os- 

5  Cowen,  499 ;  McAlexander  v.  Harris,  5  good,  3  Pick.  379.     See  also  Bradley  v. 

Munf.  465.     See  also  Boies  v.  McAllister,  Heath,  12  Pick.  163. 
•?  Fairf  310;  Rigden  v.  Wolcott,  6  G.  &         ^  Larned  v.  Buffington,  3  Mass.  546,  as 

J.  413.  qualified  in  1  Pick.  19;  Mapes  v.  Weeks, 

2  2  Stark,  on  Slander,  p.  88,  note  (1),  4  Wend.  663;  Hotchkiss  v.  Oliphant,  2 
by  Wendell;  Root  v.  King,  7  Cowen,  Hill  (N.  Y.),  R.  515  ;  2  Stark,  on  Slander, 
613;  Gilman  v.  Lowell,  8  Wend.  582;  p.  95,  note,  by  Wendell ;  O'Shaughnessy 
Mapes  V.  Weeks,  4  Wend.  659,  662.  v.  Haydn,  2  Fox  &  Sm.  329. 

»  Anon,  cited  arg.  2  Campb.  254;  2  '^  Dickinson  v.  Barber,  9  Mass.  225, 
Stark  on  Slander,  p.  83,  note  (1),  by  228;  3  Am.  Jur.  297.  But  the  defendant 
Wendell.  will  not  be  permitted  to  offer,  in  mitigatioxj 


260  LAW   OF   EVIDENCF  [PART  IV. 

§  276.  In  trover^  the  value  of  the  propprtv  at  the  time  of  the 
conversion,  if  it  has  not  been  restored  and  acceoted  by  the  plain- 
tiff, with  interest  on  that  amount,  is  ordinarily  the  measure  of 
damages.!  It  has  been  further  held,  that  the  jury  may,  in  their 
discretion,  find  the  value  at  a  subsequent  time.  Thus,  in  trover 
for  East  India  Company's  warrants  for  cotton,  where  the  value  at 
the  time  of  the  conversion  was  six  pence  the  pound,  but  it  after- 
wards rose  to  upwards  of  ten  pence,  the  jury  were  left  at  liberty 
to  find  the  latter  price  as  the  value  ;  for  though  the  plaintiff  might 
with  money  have  replaced  the  goods  at  the  former  price,  yet  he 
might  not  have  been  in  funds  for  that  purpose.^  And  in  England, 
the  plaintiff  is  permitted  to  recover  any  special  damage  which  he 
may  allege  and  be  able  to  prove  as  the  result  of  the  wrongful  act 
of  the  defendant.  Thus,  under  a  count  in  trover  for  the  conver- 
sion of  tools,  by  means  whereof  the  plaintiff  was  prevented  from 
working  at  his  trade  of  a  carpenter,  and  was  greatly  impoverished, 
they  being  the  implements  of  his  trade  ;  it  was  held  that  the  spe- 
cial damage  directly  flowing  from  the  detention  of  his  tools  was  re- 
coverable.^ But  in  the  United  States,  upon  consideration  of  the 
rule,  it  has  been  held  safer  to  adhere  to  the  value  at  the  time  of  the 
conversion,  with  interest.  But  if  the  defendant  has  enhanced  the 
value  of  the  goods  by  his  labor,  as,  for  example,  if  he  has  taken 
logs,  and  converted  them  into  boards,  the  plaintiff  is  permitted  to 
recover  the  enhanced  value,  namely,  the  value  of  the  boards,  and 
is  not  confined  to  the  value  of  the  material,  either  at  the  place  of 
taking,  or  of  manufacture.^  Where  the  subject  is  a  written  secu- 
rity, the  damages  are  usually  assessed  to  the  amount  of  the  princi- 
pal and  interest  due  upon  it.^  If  the  plaintiff  has  himself  recov^ 
ered  the  property,  or  it  has  been  restored  to  him  and  accepted,  the 
actual  injury  occasioned  by  the  conversion,  including  the  expenses 
of  the  recovery,  will  form  the  measure  of  damages ;  ^  and  if  the 
property  in  whole  or  in  part  has  been  applied  to  the  payment  of 
the  plaintiff's  debt  or  otherwise  to  his  use,  this  may  be  considered 

of  damages,  any  evidence  impeaching  his  2  Greening  v.   Wilkinson,  1    C.   &  P. 

own  character  for  veracity.     Howe  v.  Per-  625. 

ry,  15  Pick.  506.  8  Bodley  v.  Reynolds,  10  Jur.  310.     See 

1  3  Campb.  477,  per  Ld.  Ellenborough ;  also  Davis  v.  Oswell,  7  C.  &  P.  804. 

Pierce   v.  Benjamin,   14  Pick.  356,  361  ;  *  Greenfield  Bank  v.  Leavitt,  17  Pick. 

Parks  V.  Boston,  15  Pick.  198,  206,  207  ;  3;    Baker   v.    Wheoler,    8    Wend.    505; 

Stone  V.  Codman,  Id.  297,300  ;  Greenfield  [Rice  v.  Hollenheck,  19  Barb.  664.] 

Bank  v.  Leavitt,  17  Pick.  1  ;  Hepburn  v.  ^  Mercer  v.  Jones,  3  Campb.  477. 

Sewelj,  5  H.  &  J.  212.     See  Sedgwick  on  »  Greenfield  Bank  v.  Leavitt,  17  Pick. 

Damap-es,  ch.  xix.  3;  Hepburn  v.  Sewell.  5  H.  &  J.  12. 


PART  IV.J  DAMAGES.  261 

by  the  jury  as  diminishing  the  injury  and  consequently  the  dam- 
ages.i 

§  277.  In  all  actions  for  2i  joint  tort,  against  several  defendants, 
the  jury  are  to  assess  damages  against  all  the  defendants  jointly, 
according  to  the  amount  which,  in  their  judgment,  the  most  cul- 
pable of  the  defendants  ought  to  pay.^  And  if  several  damages 
are  assessed,  the  plaintiff  may  elect  which  sum  he  pleases,  and 
enter  judgment  de  mdiorihus  damnis,  against  them  all.^  But  if 
several  trespasses  are  charged  in  the  declaration,  and  the  defend- 
ants plead  severally,  and  are  found  severally  guilty  of  distinct  tres- 
passes, the  damages  ought  to  be  severed  and  assessed  for  each 
trespass  against  him  who  committed  it.* 

§  278.  The  averment  of  alia  enormia,  at  the  end  of  a  declaration 
in  trespass,  seems  to  have  been  designed  to  enable  the  plaintiff  to 
give  evidence  of  circumstances  belonging  to  the  transaction  which 
were  not  in  themselves  actionable,  and  which  could  not  conven- 
iently be  put  upon  the  record.  And  it  has  frequently  been  said 
that,  under  this  averment,  things  may  be  proved  which  could  noi 
be  put  upon  the  record  because  of  their  indecency ;  and  that, 
therefore,  in  trespass  for  breaking  and  entering  the  plaintiff's 
house,  he  might,  under  this  averment,  prove  that  the  defendant, 
whilst  there,  debauched  his  daughter.  "When  this  doctrine  was 
first  advanced,  it  was  generally  understood  that  no  action  would 
lie  for  this  latter  injury,  unless  as  an  aggravation  of  the  former ; 
and  hence,  the  judges  may  have  been  led  to  find  a  special  reason 
for  admitting  this  evidence.  But  since  it  is  well  settled,  and  has 
become  the  ordinary  course,  to  sue  specially  for  this  injury  to  a 

1  Pierce  v.  Benjamin,  14  Pick.  356,  361  ;  rish  v.  Cummings,  4  Cash.  391 ;  Gardner 

Kaley  v.  Shed,  10  Met.  317.    [In  an  action  v.  Field,  1  Gray,  151.] 
of  trover,  if  the  defendant  at  the  time  of        ^  Heydon's  case,  1 1  Co.  5  ;  Headley  v. 

the  conversion  had  alien  on  the  goods  to  Mildmay,  1  Roll.  R.  395,  pi.  17;  7  Vin. 

a  certain  amount,  the  rule  of  damages  is  Abr.  303,  pi.  5,  S.  C. ;    Johns   v.  Dods- 

the   value   of  the  goods,    deducting    the  worth,  Cro.  Car.  192;  Doune  r.  Estevin 

amount  of  the  lien  and  adding  interest  on  de  Darby,  44  E.  3,  7  ;  F.  N.  B.  [107]  E. ; 

the  balance.     Fowler  v.  Gilman,  13  Met.  Walsh  v.  Bishop,  Cro.  Car.  243;  Rodney 

267.]  V.  Strode,    Carth.  19;   2  Tidd's  Pr.  896, 

^  Brown  v.  Allen,  4  Esp.  158 ;  Lowfield  (9th  edit.) ;  Halsey  v.  WoodruflF,  9  Pick, 

t.  Bancroft,  2  Stra.  910  ;  Bull.  N.  P.  15  ;  455. 

.\usten  V.  Willwai-d,  Cro.  El.  860  ;  Hey-         *  Propr's  of  Kennebec  Purchase  v.  Bol- 

(ion's  case,  11  Co.  5  ;  Onslow  v.  Orchard,  ton,  4  Mass.  419.     Where  an  injury  was 

i  Stra.  422  ;    Smithson  v.  Garth,  3  Lev.  done  by  two  dogs  jointly,  wlio  belonged  to 

324 ;  3  Com.  Dig.  348,  tit.  Damages,  E.  6 ;  several  owners,  it  was  held  that  each  ovra.- 

Elliot  V.  Allen,  1  M.  G.  &  S.  18.     [In  an  er  was  liable  only  for  the  mischief  done  by 

action  of  trover  against  two,  one  of  whom  his  own  dog.     Buddington  v.  Shearer,  20 

is  defaulted,  and  the  other  found  guilty  by  Pick.  477  ;  Rassell  v.  Tomlinson,  2  Conn, 

the  jury,  there  is  but  one  assessment  of  R.  206. 
damages,  and  the  judgment  is  joint.     Ger- 


262  LAW   OF  EVIDENCE.  [PART  IV 

daughter  and  servant,  as  well  as  for  criminal  conversation  with  a 
wife,  and  to  allege  the  main  facts  upon  the  record,  no  reason  is 
perceived  for  retaining  this  anomaly  in  practice.  There  is  no 
injury,  however  indecent  in  its  circumstances,  but  may  be  sub- 
stantially stated  with  decency  on  the  record ;  the  law  permitting 
and  even  requiring  parties,  as  well  as  witnesses,  to  state  in  general 
terms  and  with  indirectness,  those  things  which  cannot  otherwise 
be  expressed  with  decency  ;  and  to  this  extent,  at  least,  every  par- 
ty is  entitled,  by  the  settled  rules  of  pleading,  as  well  as  by  the 
reason  of  the  thing,  to  be  informed  of  that  which  is  to  be  proved 
against  him.  The  circumstances  and  necessary  results  of  the  de- 
fendant's wrongful  act  may  be  shown  without  this  averment ;  and 
as  to  those  consequences  which,  though  natural,  did  not  necessa- 
rily follow,  they  must,  as  we  have  seen,^  be  specially  alleged.^ 

1  See  supra,  §  253.  Chitty  on  PI.  412  {7th    ed.)  ;     Chitty's 

2  See  the  observations  of  Mr.  Peake,  Precedents,  p.  716,  note  (k);  Bull.  N.  P. 
Evid.  p.  505,  by  Norris  ;  Mr.  Phillips,  2  89  ;  Lowden  v.  Goodrick,  Peake's  Cas.  46 ; 
Phil.  Evid.  180;  Id.  p.  136  (2d  Am.  ed.) ;  Pettit  v.  Addington,  Id.  62. 

and  Mr.  Starkie,  2  Stark.  Evid.  815 ;    1 


PART  lY.]  DEATH.  263 


DEATH. 

[*§  278  a.  The  amount  of  evidence  requisite  to  establish  the  fact  is  affected  by  the 
nature  of  the  case  in  which  the  question  arises. 

278  6.  Instances  in  which  proof  of  death  is  required  in  the  United  States. 

278  c.  In  cases  of  apparent  sudden  death,  testimony  of  a  medical  man  is  desirable. 

278  d.  In  documentary  evidence  of  death,  the  identity  of  the  person  is  prima  facie 
inferred  from  identity  of  name,  except  where  the  place  of  residence  was  in  a 
large  city  or  town. 

278  c.  Circumstances  from  which  death  may  reasonably  be  inferred. 

278/.  Presumption  of  life  extends  to  seven  years  from  the  time  the  person  was  last 
known  to  be  living. 

278  g.  Reputation  in  the  family  and  family  conduct  admissible  in  cases  of  pedigree, 
also  admissible  to  prove  death. 

278  h.  Where  no  injury  can  result  from  mistake  in  regard  to  death,  much  less  evi- 
dence required  than  in  other  cases.  ] 

§  278  a.  The  amount  of  evidence  required  to  establish  the  fact 
of  death  is  somewhat  affected  by  the  nature  of  the  case  in  which 
the  question  arises.  In  trials  for  homicide,  this  is,  of  necessity,  to 
be  proved  at  the  outset,  in  the  most  satisfactory  manner,  and  be- 
yond any  reasonable  doubt ;  such  being  the  rule  of  evidence  in  the 
criminal  law.^  This,  therefore,  is  the  highest  degree  of  proof  de- 
manded of  this  fact.  In  civil  cases  it  is  ordinarily  sufficient  to 
prove  it  by  the  mere  preponderance  of  evidence ;  and  yet  here 
there  is  a  difference  in  the  amount  of  proof  required,  according  to 
the  materiality  of  the  fact  to  the  subject  in  controversy.  Thus, 
in  a  claim  of  title  by  descent  or  succession,  or  of  the  right  of  ad- 
ministration, the  party  is  held  to  a  more  strict  proof  of  the  death 
of  the  ancestor,  than  in  cases  where  the  question  arises  incidentally 
and  collaterally  in  the  proceedings,  as,  for  example,  on  a  motion  to 
read  the  deposition  of  a  witness,  or  to  give  evidence  of  his  testi- 
mony at  a  former  trial,  on  the  ground  of  his  subsequent  decease ; 
for  these  are  cases  addressed  to  the  discretion  of  the  court,  in  which 
the  consequences  of  mistake  are  comparatively  of  not  much  im- 
portance, and  are  without  difficulty  retrieved.^ 

§  278  h.   In  the  United  States,  the  proof  of  deaths  in  cases  not 

1  ^tQpost,  Vol.  3,  §§  30,  130.  131,  132.  2  Carrington  v.  Comock,  2  Sim.  567. 


264  LAW  OF  EVIDENCE.  [?ART  IV. 

criminal,  is  required  m  claiming  title  to  land  by  descent,  as  heir, 
against  a  stranger  ;  or  as  dowress,  against  any  tenant  of  the  free- 
hold ;  or,  in  the  probate  courts,  in  an  application  for  letters  testa- 
mentary, upon  the  probate  of  a  will ;  or  of  letters  of  administra- 
tion ;  or,  in  a  claim  of  the  insurance-money,  upon  a  policy  on  the 
life  of  another,  by  the  party  to  whom  it  was  made  payable  at  his 
death ;  or  in  a  claim  of  wages  or  pension  or  hounty-money ,  by  the 
widow  or  child  of  one  entitled  under  the  laws  regulating  the  mili- 
tary, land,  or  naval  service. 

§  278  c.  The  direct  and  most  satisfactory  ^roo/ 0/  the  death  of  a 
person  is  the  testimony  of  those  who  saw  him  die,  or  who,  having 
known  him  when  living,  saw  and  recognized  his  body  after  his  de- 
cease. In  the  former  of  these  cases,  if  the  circumstances  were  of 
a  nature  to  leave  the  fact  in  any  degree  doubtful,  as,  for  instance, 
in  apparent  sudden  death,  whether  from  the  inhalation  of  noxious 
gases,  or  other  accident,  the  testimony  of  a  medical  person  is  desir- 
able, and,  if  possible,  should  be  obtained. 

§  278  d.  The  indirect  evidence  of  death  is  either  documentary  or 
oral.  Among  the  documentary  instruments  of  proof  which  have 
been  received  may  be  enumerated  Parish  and  other  Registers, 
where  such  are  required  by  law  to  be  kept ;  ^  Muster  Rolls  and 
Returns,  in  the  military  and  naval  service  ;  ^  Coroners'  Inquests  ;  ^ 
Probate  of  the  will  of  the  deceased,  or  the  grant  of  administration 
on  his  estate  ;  ^  the  assignment  of  the  widow's  dower  upon  writ, 
or  other  legal  proceedings ;  previous  litigation  respecting  the  es- 
tate of  the  deceased,  terminated  in  favor  of  those  claiming  as 
heirs.  The  identity  of  the  person  is,  prima  facie,  inferred  from  the 
identity  of  the  name  ;  except  where  the  place  of  residence  was  in 
a  large  city  or  town ;  in  which  case,  proof  of  some  additional  cir- 
cumstances seems  to  be  necessary.^ 

1  See  ante,  Vol.  1,  §§  483,  484,485,  493  ;  administration  had  been  granted  after  an 

Bull.  N.  P.  247  ;  Doe  v.  Andrews,  15  Ad.  absence  of  three  years,  and  a  suit  had  been 

&  El.  756,  N.  S.     A  consul's  certificate  is  brought  upon  a  promissory  note  payable  to 

not  evidence  of  the   death   of  a  person,  the  intestate   without  any   plea  iri  abate- 

Morton  v.  Barrett,  1  Applet.  109.  ment  being  interposed,  a  conclusive   pre- 

f  ilj'tl-  sumption    of   the  death   of    the   intestate 

''^    Ibid.      Sergeson   v.    Sealey,   2    Atk.  arose   from  the  above  facts.     Newman  v. 

412  ;  1  Saund.  362,  note  (1),  by  Williams.  Jenkins,  10  Pick.  515.    We  apprehend  the 

*  /w/m,  §§  355,  693  ;  a;)/e.  Vol.  1,  §  550.  presumption  would  be  prima   facie  in  fa- 

[*  In  some  cases,  although   holding  that  vor  of  the  decease  if  a  plea  iii  abatement 

the  absence  of  a  person  from  the  State,  were  interposed,  but  open  to   proof  that 

without  being  heard  from  for  any  period  the  testator  is  still  living.     2  Kedfield  on 

short  of  seven  years,  is  not  sufficient  to  Wills,  2.] 

raise  a  legal  presumption  of  his  death,  it  ^  Hubback  on  Succession,  pp.  1C6,  464, 

has  been  considered  that  where  letters  of  465. 


PART  IV.J  DEATH.  265 

§  278  e.  The  oral  evidence,  indirectly  proving  death,  consists  of 
those  circumstances  from  which  the  death  of  the  person  may  rea- 
sonably be  inferred;  such  as  long  absence,  without  any  intelli- 
gence respecting  him,  reputation  in  the  family,  and  their  conduct 
thereupon,  and  other  circumstances.  In  regard  to  long  absence, 
this  alone,  without  the  aid  of  other  facts,  has  been  said  not  to  fur- 
nish any  presumption  of  the  party's  death ;  on  the  ground  of  an 
other  rule,  namely,  that  the  last-proved  state  of  things  is  presumed 
to  continue ;  and  that,  therefore,  the  existence  of  a  living  person 
being  once  shown,  he  is  presumed  to  continue  alive,  and  the  bur- 
den of  proof  is  upon  the  party  asserting  his  death.  This  presump- 
tion is  held  by  the  civilians  to  continue  for  a  hundred  years  ;  ^  and 
it  has  been  applied  in  courts  of  common  law  to  almost  as  great  an 
extent.^  But  it  is  conceived  that  the  presumption  of  continuance 
can  justly  be  applied  only  until  a  contrary  presumption  is  raised, 
from  the  nature  of  the  subject.^  It  would  surely  be  unreasonable 
to  presume  that  an  orange,  proved  to  have  existed  fresh  ten  years 
ago,  is  still  sound ;  a  contrary  presumption  having  arisen,  from  the 
ascertained  average  duration  of  that  fruit,  in  a  sound  state.  On 
the  same  principle,  the  average  duration  of  human  life,  after  any 
given  age,  being  now  ascertained  and  stated  in  well-authenticated 
tables,  which  have  been  recognized  by  the  courts  as  safe  rules  in 
the  calculation  of  the  value  of  annuities,  and  in  other  similar 
cases,  no  good  reason  is  perceived  why  the  same  tables  may  not 
be  resorted  to  as  furnishing  ground  legally  to  presume  the  death 
of  a  person,  after  the  lapse  of  the  period  of  the  probable  duration 
of  his  life,  in  the  absence  of  any  evidence  to  the  contrary.^ 

§  278/.  But  however  this  may  be,  as  a  mere  presumption  of 
law,  the  rule  is  now  settled,  for  most  judicial  purposes,  that  the 
presumption  of  life,  with  respect  to  persons  of  whom  no  account  can 
be  given,  ends  at  the  expiration  of  seven  years  from  the  time  they 

1  Vivero  etiam  nsque  axi  centum  annos,  in  1731,  on  the  presumption  that  the  wit- 

quilibet  pr£esumitur.     Corpus  Juris  Glos-  ness  was  dead;  Reynolds,  C.    B.,  refused 

satum,  torn.  2,  p.  718.     And  see  Mascai'-  to   admit  it,  without  proof  of  proper  but 

dus,  De  Probat,  Vol.  1,  concl.  103,  n.  5;  ineffectual  search  and  inquiry  after  him. 

Id.  Vol.  3,  concl.  1075,  n.  1 ;  1078,  n.  6.  See  also  Hubback  on  Succession,  pp.  167, 

^  In  Atkins  v.  Warrington,  it  is   said  168. 

that  the  Court  of  Queen's  Bench  refused  ^  See  ante,   Vol.   1,   §   41  ;    2    Cruise's 

judicially  to  presume  that  a  person,  alive  Dig.  tit.  16,  ch.  1,  §  25;  Id.  ch.  3,  §§  8,  9, 

in  the  year  1034,  was  not  living  in  the  year  10  (Greenl.  ed.)   [2d   ed.    1856];  Fearne, 

1827.     See  Best  on  Presumptions,  §  139.  Rem.  p.  21  -23. 

And  in  Benson  v.  Olivo,  2  Stra.  920,  when  *  See  Hubback  on  Succession,  pp.  171, 

the  deposition  of  a  witness,  examined  in  172.     But  see  In  re  Hall,   Wallace,  Jr. 

1672,  was  offered  to  be  read  at  a  trial  had  Rep.  85. 


266  LAW   OF  EVIDENCE.  [PART  IV. 

were  last  known  to  be  living  ;  after  which,  the  burden  of  proof  is 
devolved  on  the  party  asserting  the  life  of  the  individual  in  ques- 
tion.^ The  issue,  in  such  cases,  is  an  issue  of  fact ;  and  the  jury 
are  at  liberty  to  find  the  fact  of  death  within  the  period  of  seven 
years,  upon  the  circumstances  proved  in  the  case.^  Among  the 
circumstances  material  to  this  issue  are,  the  age  of  the  party,  his 
situation,  habits,  employment,  state  of  health,  physical  constitu- 
tion ;  the  place  or  climate  of  the  country  whither  he  went,  and 
whetlier  he  went  by  sea  or  land ;  the  facilities  of  communication 
between  that  country  and  his  former  home  ;  his  habit  of  corre- 
spondence with  his  relatives  ;  the  terms  of  intercourse  on  which  he 
lived  with  them ;  in  short,  any  circumstances,  tending  to  aid  the 
jury  in  finding  the  fact  of  life  or  death.  There  must  also  be  evi- 
dence of  diligent  inquiry  at  the  place  of  the  person's  last  residence 
in  this  country,  and  among  his  relatives,  and  any  others  who  prob- 
ably would  have  heard  of  him,  if  living  ;  and  also  at  the  place  of 
his  fixed  foreign  residence,  if  he  was  known  to  have  had  any.^ 

§  278  g.  Reputation  in  the  family  and  family  conduct  admissible 
m  cases  o^ pedigree,  which  have  been  treated  in  the  preceding  vol- 
ume, are  also  admissible  in  proof  of  the  death  of  a  member  of 
the  family.* 

§  278  h.  It  may  be  added,  that  where  the  subject  of  the  claim 
is  paramount,  so  that  no  injury  to  the  absent  owner  can  result 
from  any  mistake  in  regard  to  his  death  ;  as,  for  example,  real 
property,  in  an  action  for  the  mere  possession ;  death  may  be  pre- 
sumed from  circumstances  much  less  weighty  and  persuasive  than 
will  be  required  where  the  subject  may  be  irretrievably  lost  to  the 
right  owner,  by  payment  or  delivery  to  the  wrong  person.  Thu^ 
in  an  action  on  a  policy  of  insurance  on  the  life  of  the  assured, 
payable  to  the  plaintiff  on  his  death.  Lord  Mansfield  instructed 
the  jury,  that  if  the  evidence  left  the  time  of  the  death  so  doubtful 

1  Sec  ante,  Vol.  1,  §  41  ;  Best  on  Pre-  the  period  of  seven  years  has  been  fixed  as 

sumptions,    §    140;Hubback   on    Succes-  the  limit  of  the  prma /«c/e  prcsumiUion  of 

sion,  pp.  170-  173  ;  Thome  w.  RolfF,  Dyer,  death,  in  the  absence  of  all  circumstances 

185  a;    Gilieland  v.   Martin,   3   M'Lean,  tending  to  the  contrary.     2   Redfield  on 

490 ;  Doe  v.  Jesson,  6  East,  85 ;    [Emer-  Wills,  3.] 

son  V.  White,  9  Foster,  N.  PI.  482;   White-  '^  Ibid.  ;  White  v.  Mann,  13  Shepl.  361. 

side's  Appeal,  23  Penn.  State  R.  (11  Har-  »  See  Hubback  on  Succession,  pp.  172- 

ris)   114.]     [*The  general  rule  is  that  the  174;  McCartee  v.  Camel,  1  Barb.  Ch.  R. 

presumption   of  the    continuance   of   life  455;  Doe  v.  Andrews,  15  Ad.  &  El.  756, 

from  absence  or  other  cause  is  regarded  as  N.  S. 

mere  presumption  of  fact,  to  be  weighed  *  Ante,   Vol.  1,  §§  103-106;  Cochrane 

by  the  jury  in  connection  with  the  attend-  v.  Libby,  6  Shepl.  39. 
ing  circumstances.    But,  for  convenience. 


PART  IV.] 


DEATH. 


267 


in  their  minds  that  they  could  not  form  an  opinion,  they  ought  to 
find  for  the  defendant.^ 


1  Patterson  v.  Black,  Park,  Ins.  433, 
434  (2d  Am.  ed.).  And  see  Masten  v. 
Cookson,  2  Eq.  Cas.  Abr.  414;  Doe  v. 
Deakin,  4  B.  &  Aid.  433;  Hubback  on 
Succession,  pp.  176  -  179.  For  the  case  of 
coinmorientes,  or  persons  perishing  in  the 
same  calamity,  see  a7ite,  Vol.  1,  §§  29,  30  ; 
Mochring  v.  Mitchell,  1  Barb.  Ch.  K.  264. 
[The  Massachusetts  Statute  (1842,  c.  89) 
provides  that  "  the  action  of  trespass  on 
the  case,  for  damage  to  the  person,  shall 
hereafter  survive,  so  that  in  the  event  of 
the  death  of  any  person  entitled  to  bring 


such  action,  or  liable  thereto,  the  same  may 
be  prosecuted,  or  defended,  by  or  against 
his  executor  or  administrator,  in  the  same 
manner  as  if  he  were  living."  In  Kear- 
ney &  Mann  v.  Boston.  &  Worcester  R.  R. 
Corp.,  9  Cush.  108,  it  was  held  that  the  ad- 
ministrator could  not  maintain  an  action 
under  the  statute,  where  the  death  of  the 
intestate  was  instantaneous  with  the  col- 
lision, and  that,  as  after  the  collision  there 
was  in  the  intestate  only  a  momentary 
spasmodic  struggle,  the  death  was  instau- 
taneoua.l 


268  LAW   OF  EVIDENCE.  [PART  IV. 


DEBT. 

[*§  279.  Action  of  debt  lies  for  a  sum  certain. 

280.  General  issue  in  certain  cases  is  nil  debet.      281.  What  may  be  proved 

under  it. 
281  a.  In  debt  on  a  parol  contract,  proof  generally  same  as  in  assumpsit  for  the 

like  causes  of  action. 

282.  Statute  of  limitations  not  provable  under  nil  debet,  but  statute  of  frauds  may 

be  in  action  on  parol  contract. 

283.  Where  criminal  omission  of  duty  is  charged,  as  in  debt  for  penalty,  plaintiff 

must  prove  negative  allegation. 

284.  Conditions  by  statute  essential  to  right  to  recover  must  be  proved. 

285.  Statutory  exemptions  from  penalty  may  be  proved  under  general  issue. 

286.  What  must  be  proved  in  debt  for  bribery. 

287.  Defences  to  debt  for  bribery. 

288.  What  must  be  proved  in  debt  for  an  escape. 

289.  Breaches  of  covenant  assigned  on  the  record  must  be  proved  as  assigned  or 

suggested. 

290.  Plea  of  solvit  ad  diem,  how  supported. 

291.  Presumption  of  payment  from  lapse  of  time  repelled  by  evidence  of  defend- 

ant's recent  admission  of  the  debt. 
291  a.  In  debt  on  judgment,  satisfaction  of  judgment  may  be  proved  by  parol. 

292.  Plea  of  non  est  factum  to  action  of  debt  on  bond  puts  in  issue  only  the  execu- 

tion of  the  instrument  declared  on.] 

§  279.  The  action  of  debt  lies  for  a  sum  certain ;  whether  it 
have  been  rendered  certain  by  contract  between  the  parties,  or  by 
judgment,  or  by  statute,  as  when  this  remedy  is  given  for  a  penal- 
ty, or  for  the  escape  of  a  judgment  debtor.^     Where  the  contract 

1  [Knowles  v.  Eastham,  11  Cush.  429;  452.     An  action  of  debt  is  not  maintain- 

Allen   V.   Lyman,    1  Williams    (Vt.)20;  able  upon  an  agreement  that  the  defend.ant 

Addison  v.  Preston,  10  Eng.  Law  &  Eq.  would  carry  certain  goods  for  the  plaintiff, 

489.     Debt  will  lie  for  penalties  and  for-  in  consideration  that  the  plaintiff  would 

feitures  imposed  by  statute,  and  where  no  carry  a  like  quantity  for  the  defendant, 

form   of  action    is    given.      Vaughan    v.  Bracegirdle  v.  Hincks,  24  Eng.  Law  &  Eq. 

Thompson,    15    111.    39;    Portland    Dry  534. 

Dock,  &c.  Co.  V.  Portland,  12  B.  Mon.  77.         An  action  of  debt  may  be  sustained  on 

It  will  not  lie  to  recover  dues  payable  out  an  obligation  to  pay  a  certain  sumof  mon- 

of  a  particular  fund.     Insane  Hospital  v.  ey  with  interest,  "  which  sum  may  be  dis- 

Higgins,  15  III.  185.    Where  a  statute  ere-  charged  in  notes  or  bonds  due  on  good 

ates  a  liability  to  pay  money,   and  pre-  solvent  men   residing  in   the    county   of 

scribes  no  particular  form  of  action  for  its  Randolph,  Virginia."     Butcher  v.  Carlile, 

recovery,  an  action  of  debt  is  the  appropri-  12  Gratt.  (Va.)  520.     Such  an  action  will 

ate  remedy     Strange  v.  Powell,  15  Ala.  lie  upon  the  decree  of  a  court  of  equity  for 


PART  IV.] 


DEBT. 


269 


is  by  a  specialty,  the  execution  of  the  deed  is  put  in  issue  by  the 
plea  of  non  est  factum,  which,  as  it  may  also  be  made  in  an  action 
of  covenant,  will  hereafter  be  considered  under  the  title  of  Deed. 
The  liability  of  an  heir,  on  the  bond  of  his  ancestor,  will  be  treated 
under  the  title  of  Heir. 

§  280.  When  this  action  is  brought  upon  a  parol  contract,  or 
for  an  escape,  or  for  a  penalty  given  by  statute,  the  general  issue 
is  nil  debet;  under  which,  as  it  is  a  traverse  of  the  plaintiff's 
right  to  recover,  he  must  prove  every  material  fact  alleged  in  the 
declaration.  And,  on  the  other  hand,  as  the  defendant  alleges 
that  he  does  not  owe,  this  plea  enables  him  to  give  in  evidence 


the  payment  of  a  specific  sum,  whenever  it 
can  be  brought  upon  the  judgment  of  a 
court  of  law.  The  records  of  both  courts 
are  of  equal  authority.  Pennington  v. 
Gibson,  16  How.  (U.  S.)  8.5. 

An  action  of  debt  may  be  sustained  up- 
on an  instrument  under  seal,  for  a  sum  cer- 
tain, payable  at  a  certain  time  and  to  a 
specified  person,  and  any  recital  of  the 
consideration  for  which  it  was  given  may 
be  rejected  as  surplusage.  Nash  v.  Nash, 
16  111.  79.  See  also  Smith  v.  Webb,  lb. 
105;  Dunlap  v.  Buckingham,  lb.  109; 
Turney  v.  Paw,  lb.  485.] 

The  common  consolidated  count  in  Debt  is 
as  follows;  "For  that  the  said  [defendant) 

on was  indebted  to   the   plaintiff  in 

dollars,  for  [Aere  state  what  the  debt  is 

for,  as  in  Assumpsit,  which  see]  which  mon- 
eys were  to  be  paid  to  the  plaintiff"  upon 
request;  whereby,  and  by  reason  of  the 
non-payment  thereof,  an  action  hath  ac- 
crued to  the  plaintiff'  to  demand  and  have 
from  the  said  (defendant)  the  sums  afore- 
said, amounting  in  all  to  the  sum  of . 

Yet  the  said  {defendant)  has  never  paid  the 
same,"  &c. 

On  a  promissory  note,  between  the  origi- 
nal parties,  the  declaration  is  as  follows : 

"For  that  the  said  (defendant)   on , 

made  his  promissory  note  and  delivered 
the  same  to  the  plaintiff",  and  thereby,  for 
value  received,  promised   the  plaintiff"  to 

pay  him  the  sum   of in months 

(as  the  case  maij  be),  and,  by  reason  of  the 
non-payment  thereof,  an  action  hath  ac- 
crued to  the  plaintitF,  to  demand  and  have 
from  the  said  (defendant)  the  sum  afore- 
said.    Yet,"  &c. 

In  debt  on  a  judgment,  the  count  is  thus  : 

"  For  that  the  plaintiff",  at  the court 

\here  describe  the  court  by  its  proper  title\ ,  be- 
gun and  holden  at within  and  for  the 

^county  or  district]  of ,  on  [liere  state  the 

aay  appointed  by  taw  for  holding  the  term]  by 
the  consideration  of  the  justices   of  said 


court,  recovered  judgment  against  the  saii 
(defendant)  for  the  sum  of debt  or  dam- 
age, and  the  further  sum  of for  costs 

of  suit,  as  by  the  record  thereof  in  the  same 
court  remaining  appears  ;  whicli  said  judg- 
ment remains  in  full  force,  unreversed  and 
unsatisfied ;  whereby  an  action  has  accrued 
to  the  plaintiff",  to  demand  and  have  from 
the   said   (defendant)    the  sums  aforesaid, 

amounting  to  the  sum   of .     Yet   the 

said  (defendant)  has  not  paid  the  same 
(nor  any  part  thereof),"  &c. 

The  following  is  the  usual  count  in  debt 
upon  a  bond:  "  For  that  the  said  (defend- 
ant) on by  his  writing  obligatory  of 

that  date,  which  the  plaintiff"  here  produces 
in  court,  bound  and  acknowledged  himself 

indebted  to  the  plaintiff"  in  the  sum  of 

to  be  paid  to  the  plaintiff"  on  demand.  Yet 
the  said  (defendant)  has  not  paid  the  same," 
&c. 

In  debt  for  rent,  founded  upon  the  defend- 
ant's occupancy,  and  not  upon  the  indent- 
ure, the  count  is  as  follows :  "  For  that 

the  plaintiff,  on demised   to  the  said 

(defendant)  a  certain  messuage  and  prem- 
ises, with    the    appurtenances,   situate    in 

,  to  have  and  to  hold  the  same  to  the 

said  (defendant)  for  the  term  of thence 

next  ensuing,  yielding  and  paying  there- 
for to  the  plaintiff,  during  the  said  term, 

the  yearly   rent   of ,  to  be  paid  [here 

insert  the  times  of  payment]  by  equal  por- 
tions ;  by  virtue  of  which  demise  the  said 
(defendant)  entered  into  said  demised  prem- 
ises, and  was  possessed  thereof  thenceforth 

and  until   the day  of ,   when   a 

large  sum  of  money,  to  wit,  the  sum  of 

of  the  rent  aforesaid,  accruing  up  to 

the  day  last  aforesaid,  was  due  and  payable 
from  said  (defendant)  to  the  plaintiff; 
whereby  an  action  has  accrued  to  the 
plaintiff"  to  demand  and  have  from  the 
said  (defendant)  the  said  sum  last  men- 
tioned. Yet  the  said  (defendant)  has  nevei 
paid  the  same,"  &c. 


270  LAW   OF  EVIDENCE.  [PAET  IV. 

any  matters  tending  to  deny  the  existence  of  any  debt,  such  as 
a  release,  satisfaction,  arbitrament,  non-delivery  of  goods,  and  the 
like.  And,  generally,  when  the  action  is  upon  a  matter  of  fact, 
though  the  fact  be  proved  by  a  specialty,  or  by  a  record,  the  plea 
of  nil  debet  is  good,  and  will  open  the  whole  declaration,  as  well 
as  admit  the  defendant  to  make  any  defence  showing  that  he  is 
not  indebted.  But  if  the  specialty  is  itself  the  foundation  of  the 
action,  though  extrinsic  facts  be  mixed  with  it,  the  rule  is  other- 
wise. Thus,  in  debt  for  rent,  due  by  indenture,  the  action  is 
founded  on  the  fact  of  occupation  of  the  premises,  and  pernancy 
of  the  profits  by  the .  defendant,  the  lease  being  alleged  only  by 
way  of  inducement ;  and,  therefore,  the  plea  of  nil  debet  puts  the 
plaintifif  upon  proof  of  the  whole  declaration ;  and,  under  it,  the 
defendant  may  give  in  evidence  a  release ;  payment ;  or,  that 
possession  was  withheld  by  the  lessor ;  or,  that  he  was  subse- 
quently ousted  or  evicted  by  the  lessor,  or  by  a  stranger  having  a 
better  title.  If  the  ouster  or  eviction  was  by  the  lessor,  and  was 
of  only  a  part  of  the  premises,  it  will  bar  the  whole  action,  for, 
being  a  wrongdoer,  no  apportionment  will  be  made  in  his  favor ; 
but  if  it  were  by  a  stranger,  the  rent  will  be  apportioned.  So,  in 
debt  for  an  escape,  upon  a  devastavit,  the  judgment  is  but  induce- 
ment, the  action  being  founded  on  the  fact  of  the  escape,  or  of 
the  waste.^ 

§  281.  In  debt  for  rent,  founded  upon  a  demise  by  deed,  if  the 
defendant  pleads  nil  habuit  in  tenementis,  the  plaintiff  may  estop 
him  by  replying  the  deed  ;  but  if,  instead  of  so  doing,  he  takes 
issue  upon  the  plea,  the  deed  is  no  estoppel,  and  the  jury  may 
find  according  to  the  truth,  upon  the  whole  matter.  And  if  he 
pleads  nil  debet,  he  cannot,  under  this  issue,  give  in  evidence  that 
the  plaintiff  had  no  interest  in  the  demised  premises ;  because, 
if  he  had  pleaded  it  specially,  the  plaintiff  might  have  replied  the 
deed,  by  way  of  estoppel ;  of  which  right  he  shall  not  be  deprived, 

1  Steph.   on  Plead.   177;  1  Chitty  on  man,  1  Stra.  701  ;  [Matthews  v.  Redwine, 

Plead.  423;  Tyndal  e;.  Hutchinson,  3  Lev.  23   Miss.   233;    King   v.  Ramsay,  13  111. 

170;  Bullis  v.  Giddens,  8  Johns.  83  ;  Min-  619.     To  an  action  on  a  covenant  not  to 

ton  V.  Woodworth,  11  Johns.  474;  Jansen  do  a  certain  thing,  the  condition  being  set 

V.    Ostranger,    1    Cowen,   670  ;  Stilson  v.  out  and  the  breaches  assigned  in  the  decla- 

Tobey,  2  Mass.  521  ;  2  Saund.  187  a,  note  ration,  nil  debet  is  noiagood  plea.     Hogen- 

(2),  by  Willi.'ims.     See,  as  to  apportion-  camp  r.  Ackerman,  4  Zabr.   (N.J.)    133. 

ment,  Woodfull's  Landlord   &  Tenant,  p.  Nil  debet   cannot  be  pleaded  to  an  action 

301    (.5th  edit.),  by  Wollaston  ;  Vaughan  on  the  judgment  of  a  court   of  another 

y.  Blanchard,  1  Yeatcs,  175;  Gilb.  Evid.  State.     Buchanan  w.  Port,  5  Ind.  (Porter,) 

283,  284  ;  Bull.  N.  P.  197  ;  Bredonr.  Hai--  264  ;  Henzley  v.  Force,  7  Eng.  756.) 


PART  IV.]  DEBT.  271 

but  by  his  own  laches.^  Nor  can  the  defendant,  under  this  plea, 
give  evidence  of  any  disbursement  for  necessary  repairs,  where  the 
plaintiff  is  bound  to  repair ;  for  his  remedy  is  by  an  action  of 
covenant.^  But  if  it  be  part  of  the  covenant  that  the  tenant  may 
make  repairs  out  of  the  rent,  the  evidence  is  admissible.^ 

§  281  a.  In  debt  upon  a  parol  contract,  also,  the  suit  being 
founded  upon  the  facts  of  the  transaction,  whether  the  contract 
be  express  or  implied,  the  plaintiff  must  allege,  and  under  the 
general  issue  must  prove,  all  the  material  facts  from  which  the 
obligation  arises ;  the  proof  being  generally  the  same  as  in  an 
assumpsit  for  the  like  causes  of  action.*  And  the  defendant,  as 
before  stated,  may  be  admitted  to  any  defence  which  shows  that 
the  plahitiff  never  had  a  cause  of  action  ;  such  as  infancy,  mental 
incapacity,  coverture,  duress,  want  or  illegality  of  consideration, 
release,  or  payment  before  breach,  term  of  credit  unexpired,^  or 
the  like ;  and  may  also  show  many  matters  which  go  in  discharge 
of  his  liability  which  once  existed,  such  as  payment,  accord  and 
satisfaction,  release,  and  other  matters  already  noticed  in  tho 
action  of  assumpsit.^ 

§  282.  The  statute  of  limitations  cannot  oe  given  in  evidence 
under  the  plea  of  nil  debet ;  it  must  be  specially  pleaded.  Nor 
can  a  former  recovery  by  another  person  be  given  in  evidence 
under  this  plea,  when  pleaded  to  an  action  of  debt  for  a  penalty 
given  by  statute ;  for  if  it  could  be  so  shown,  the  plaintiff  might 
be  deprived  of  the  opportunity  of  pleading  nul  tiel  record,  or 
of  proving  that  the  recovery  was  by  fraud.'^  But  in  debt  upon  a 
parol  contract,  under  the  plea  of  nil  debet,  the  defendant  may  take 
advantage  of  the  statute  of  frauds ;  for  the  plaintiff,  under  that 
issue,  is  bound  to  prove  his  case  by  such  evidence  as  the  statute 
requires.^ 

§  283.  In  debt  for  a  penalty  given  by  statute,  and  in  every 
other  case,  where  a  criminal  omission  of  duty  is  charged,  whether 
official  or  otherwise,  we  have  already  seen  that  the  allegation, 
though  negative  in  its  character,  must  be  proved  by  the  plaintiff.* 

1  Bull.  N.  P.  170;  Treyian  u.  Lawrence,  "<  Bull.  N.  P.  197  ;  Bredon  v.  Harman, 

1  Salk.  277.  1  Stra.  701. 

-  Bull.  N.  P.  176,  177;  Taylor  v.  Beal,  «  Fncker  v.   Thomlinson,   1    M.  &  G. 

Cro.  El.  222.  772.     So,  in  assumpsit,  the  same  defence  is 

^  Clayton   v.  Kynaston,    1    Ld.   Kaym.  open  under  the  general  issue.     Battemere 

420,  per  Holt,  C.  J.  v.  Hayes,   5   M.  &  W.  456 ;  Eastwood  v. 

*  Sees!/pra,  tit.  Assumpsit.  §§112-129.  Kenyon,  II  Ad.  &  El.  438. 

s  Broomfield  v.  Smith,  1  M.  &  W.  542.  9  Ante,  Vol.  1,  §§  78,  80. 

6  See  supra,  §§  135,  136  a,  280. 


272  LAW   OF   EVIDENCE.  [PART  IV. 

But  if  the  action  is  founded  on  the  doing  of  an  act  without  being 
duly  licensed  or  qualified,  the  burden  of  proving  the  license  or 
qualification  lies  on  the  defendant,  because  it  is  a  matter  lying 
peculiarly  within  his  own  knowledge.-^ 

§  284.  The  plaintiff  in  such  actiori,  besides  proving  the  corput 
delicti  as  alleged,  must  also  show  that  the  action  has  been  regu- 
larly commenced  within  the  limited  time,  if  the  statute  has  made 
this  essential  to  his  right  to  recover ;  and  in  the  right  county,  if 
any  is  designated  by  law.^  If  the  time  of  the  commencement 
of  the  action  does  not  appear  on  the  record,  it  may  be  shown  by 
the  writ,  or,  aliunde,  by  any  other  competent  evidence.^  And  if 
part  of  the  penalty  is  given  to  the  town  or  parish  where  the 
offence  was  committed,  or  to  the  poor  thereof,  it  must  be  proved 
that  the  offence  was  committed  in  that  town  or  parish.^ 

§  285.  The  defendant,  in  a  penal  action,  may,  under  the  general 
issue,  avail  himself  of  any  statutory  provision  exempting  him  from 
the  penalty,  whether  it  be  contained  in  the  same  statute  on  which 
the  action  is  founded,  or  in  any  other.^  He  may  also,  under  this 
issue,  take  advantage  of  any  variance  between  the  allegation  and 
the  proof  on  the  part  of  the  plaintiff;  for,  as  we  have  already  seen, 
the  plaintiff  is  held  to  the  same  strictness  of  proof  in  a  pena' 
action  or  in  an  action  founded  in  tort,  where  a  contract  is  set 
forth,  as  in  an  action  upon  the  contract  itself.^ 

§  286,  In  an  action  of  debt  for  bribery  at  an  election,  the 
material  fact  is,  that  the  party  was  bribed  to  vote  ;  and  the  plain- 
tiff must  therefore  prove  some  bribe,  promise,  or  agreement, 
according  to  the  statute,  previous  to  voting.  But  though  sev- 
eral candidates  are  mentioned  in  the  declaration,  it  will  not 
be  necessary  to  prove  that  the  party  was  bribed  to  vote  for  more 
than  one ;  nor  that  they  were  all  candidates ;  nor  will  it  be 
necessary  to  prove  that  the  party  bribed  was  a  voter,  the  offer 
of  a  bribe  by  the  defendant  being  conclusive  evidence,  against 
him,  of  that  fact.^     A  wager  with  the  voter,  by  a  person  who 

1  Ante,  Vol.  1,  §  79.  *  Evans  v.  Stephens,  4  T.  R.  226  ;  Fred- 

2  Bull.  N.  P.  194,  195.     And  see,  as  to     erick  v.  Lookup,  4  Burr.  2018. 

the  place  where  the  offence  was  committed,  *  Rex  v.  St.  George,  3  Campb.  222. 

Scott  V.  Brest,  2  T.  R.  238 ;  Butterfield  v.  «  ^^^g^  Vol.  1,  §§  58, 65  ;  Parish  v.  Bur- 

Windle,  4  East,   385 ;  Pope  v.  Davies,  2  wood,  5  Esp.  33 ;  Everett  v.  Tindal,  Id. 

Campb.  266 ;  Scurry  v.  Freeman,  3  B.  &  169 ;  Partridge  v.  Coates,  1  C.  <&  P.  534 ; 

P.  331 ;  Pearson  v.  McGowran,  3  B.  &  C.  Ry.  &  M.  153,  S.  C. 

700.  '^  Combe  v.  Pitt,  3  Burr.  1586  ;  Rigg  v 

3  Johnson  v.  Smith,  2  Burr.  950  ;  Gran-  Curgenven,  2  Wils.  395. 
ger  V.  George,  5  B.  &  C.  149. 


PART  IV. J  DEBT.  273 

is  not  one,  that  he  will  not  vote  for  a  particular  candidate,  is 
an  offer  or  agreement  to  bribe  ;  and  in  any  case  is  competent 
evidence  for  the  plaintiff,  the  intent  being  for  the  consideration 
of  the  jury.i 

§  287.  The  defendant  in  such  action  may,  under  the  general 
issue,  show  that  the  money  was  a  mere  loan ;  but  though  a  note 
be  given,  the  question  whether  it  was  a  loan  or  a  gift  will  still 
be  for  the  jury.^  It  is  no  defence  that  the  party  did  not  vote  as 
he  was  requested  ;  nor  that  he  never  intended  so  to  do  ;  ^  nor  that 
the  party  corrupted  had  no  right  to  vote,  if  he  claimed  such  right, 
and  the  party  offering  the  bribe  thought  he  had  such  right.* 

§  288.  In  deht  for  an  escape,  the  plaintiff  must  prove,  (1.)  the 
judgment  by  a  copy  of  record ;  (2.)  the  issuing  and  delivery  of 
the  writ  of  execution  to  the  officer ;  (3.)  the  arrest  of  the  debtor  ; 
and  (4.)  the  escape.  The  process  may  be  proved  by  its  produc- 
tion, or,  if  it  has  been  returned,  by  a  copy.  If  the  defendant  has 
made  the  return,  this  is  conclusive  evidence  against  him,  both  of 
the  delivery  of  the  precept  to  him,  and  of  the  facts  stated  in  the 
return.  If  the  process  is  not  returned,  after  proof  of  notice  to 
the  defendant  to  produce  it,  secondary  evidence  of  it  is  admissi- 
ble.^ The  escape,  if  voluntary,  may  be  proved  by  the  party 
escaping ;  for  though  the  whole  amount  of  the  debt  may  be 
recovered  against  the  sheriff,  yet  this  will  be  no  defence  for  the 
debtor  in  an  action  by  the  creditor  against  him.^ 

§  289.  Where  breaches  of  covenant  are  assigned  on  the  record, 
the  plaintiff  should  be  prepared  to  prove  the  breaches  as  assigned 
or  suggested,  and  the  amount  of  damages.'^  And  if  the  condition 
of  the  bond  declared  on  is  for  the  performance  of  the  covenants 
in  some  other  deed,  he  must  prove  the  execution  of  that  deed 
also,  as  well  as  the  breaches  alleged.^  If  the  condition  of  the 
bond  IS  not  set  out  in  the  pleadings,  but  is  only  suggested  on  the 
record  after  a  judgment  on  demurrer,  the  plaintiff,  in  proving  his 
damages,  must  produce  the  bond,  and  prove  its  identity  with  the 

1  Allen  V.  Heam,  1  T.  R.  56, 60  ;  Anon.  Fancet,  3  Ad.  &  El.  51 ;  Harding  v.  Stokes, 
Lofft,  R.  552  ;  United  States  v.  Worrall,     2  M.  &  W.  233. 

2  Dall.  384.     See  Commonwealth  v.  Chap-  *  Lilly  v.  Corae,  1  Selw.  N.  P.  650,  note. 

man,  1  Virg.  Cas.  138.    Whether  an  agree-  ^  Cook  v.  Round,  1  M.  &  Rob.  512. 

ment  to  vote  for  each  other's  candidates  ^  Bull.  N.  P.  67 ;  Hunter  v.  King,  4  B. 

for  diiforent  offices    amounts  to   bribery,  &  Aid.  210,  per  Abbott,  C.  J. ;  Ante,  VoL 

qimre  ;  and  see  Commonwealth  v.  Calla-  1 ,  §  404. 

ghan,  2  Virg.  Cas.  460.  ''  2    Sannd.    187   a,   note    (2)  ;  2   Phil. 

2  Sulston  V.  Isorton,  1  W.  Bl.  317,  318.  Evid.  169. 

8  lb. ;  3  Burr.  1235,  S.  C. ;  Henslow  r.         »  2  PhU.  Evid.  169. 
VOL.  II.  18 


274  LAW   OF  EVIDENCE.  [PART  IV. 

bond  declared  on ;  but  of  this  fact,  slight  evidence,  it  seems,  will 
ordinarily  suffice.^ 

§  290.  The  plea  of  solvit  ad  diem,  to  an  action  of  debt  on  a 
bond,  payable  on  a  certain  day,  will  be  supported  by  evidence 
of  payment  before  the  day  ;  for  if  the  money  were  paid  before  the 
day,  the  obligee  held  it  m  trust  for  the  obligor  until  the  day,  and 
then  it  became  his  own,^  But  if  the  bond  was  payable  on  or 
before  a  certain  day,  the  payment  before  the  day  may  be  so 
pleaded  and  proved.^  This  plea  may  be  supported  by  the  lapse 
of  twenty  years,  without  any  payment  of  interest  on  the  bond 
within  that  period.  But  as  the  payment  of  any  interest  after  the 
day  will  falsify  this  plea,*  the  plaintiff,  where  interest  or  part 
of  the  principal  has  been  so  paid,  should  plead  solvit  post  diem; 
in  which  case  the  lapse  of  twenty  years  since  the  last  payment 
will,  in  the  absence  of  opposing  proof,  warrant  the  jury  in  finding 
for  the  defendant.^  This  presumption  of  payment,  arising  from 
the  lapse  of  twenty  years,  is  not  conclusive ;  and,  on  the  other 
hand,  the  jury  may  infer  the  fact  of  payment  from  the  lapse 
of  a  shorter  period,  with  corroborating  circumstances.^ 

§  291.  This  presumption,  arising  from  lapse  of  time,  may  be 
repelled  by  evidence  of  the  defendant's  recent  admission  of  the 
debt  or  duty  ;  such  as  the  payment  of  interest,  and  the  like.'''  But 
an  indorsement  of  part  payment,  made  on  the  bond  by  the 
obligee,  is  not  alone  evidence  of  that  fact ;  the  indorsement  must 
be  proved  to  have  been  made  at  a  time  when  the  presumption 
of  payment  could  not  have  arisen,  and  when,  therefore,  the  in- 
dorsement was  contrary  to  the  interest  of  the  obligee.^  This  pre- 
sumption may  also  be  repelled  by  evidence  of  other  circumstances, 
such  as  the  plaintiff's  absence  abroad,  and  the  like,  explanatory 
of  his  neglect  to  demand  his  money .^ 

1  Hodgkinson  v.  Marsden,  2  Campb.  121.         «  Oswald  v.  Leigh,  1  T.  K.  271  ;  Colsell 

2  Tryon  v.  Carter,  7  Mod.  231  ;  2  Stra.  v.  Budd,  1  Campb.  27.  See  also  4  Burr. 
994,    S'.  C. ;    Dyke   v.   Sweeting,    Willes,     1963. 

585.     If  one  only,  of  several  joint  and  sev-  ^  j  T.  R.  271. 

eral  obligors,  is  sued,  he  may  give  evidence  ^  See  ante,  Vol.   1 ,  §§121,   122.      See 

of  any  payment  made  by  his  co-obligors,  also   Roseboom   v.   Billington,    17  Johns. 

Mitchell  V.  Gibbes,  2  Bay,  R.  475.  182  ;  Rose  v.  Bryant,  2  Campb.  321.     The 

8  2  Saund.  48  b.  creditor's  indorsement   alone  is  now  ren- 

*  Moreland    v.   Bennett,    1    Stra.   652;  dered  insufBcient,  by  Stat.  9  Geo.  4,  c.  14, 

Denham  v.  Crowell,  Coxe,  R.  467.  and  by  the  statutes  of  several  of  the  Unit. 

6  2  Saund.  48  6;  Bull.  N.  P.  174  ;  More-  ed  States.     See   Massachusetts,  Rev.  Stat. 

land  V.  Bennett,  1  Stra.  652 ;  2  Steph.  N.  ch.  120,  §  17  ;  Maine,  Rev.  Stat.  eh.  146, 

P.  1259.     The  Tplen  of  solvit  post  diem  was  §23. 

bad  at  common  law,  but  was  permitted  by  '  Newman  v.  Newman,  1  Stark.  R.  101  ; 

Stat.  4  Ann.  c.  16.  §  12.  Willaume  v.  Gorges,  1  Campb.  317.     See 


PAET  IV.]  DEBT.  275 

§  291  a.  In  deht  on  a  judgment^  it  has  been  held,  that  satisfac- 
tion of  the  judgment  may  be  proved  by  parol,  even  though  the 
payment  was  of  a  less  sum  than  the  whole  amount  due,  provided 
it  was  actually  received  and  accepted  in  full  satisfaction  of  the 
judgment.^  And  if  the  judgment  were  against  the  debtor  by 
his  family  name  only,  and  in  the  action  of  debt  upon  it  he  is 
sued  by  both  his  Christian  and  surname,  the  plaintiff  may  prove 
the  identity  of  the  person  by  parol. ^ 

§  292.  The  plea  of  wow  e8t  factum,  to  an  action  of  debt  on  bond, 
puts  in  issue  only  the  execution  of  the  instrument  declared  on, 
and  admits  every  other  allegation.  Therefore  the  defendant,  un- 
der this  issue,  cannot  give  in  evidence,  as  a  defence,  anything  aris- 
ing under  the  condition  of  the  bond;^  nor  can  he  show  that  the 
bond  was  not  taken  conformably  to  the  requisitions  of  a  statute.* 
And  if  the  action  is  against  one  obligor  alone,  as  jointly  and  sever- 
ally bound,  the  plaintiff  cannot,  under  this  plea,  give  in  evidence 
a  joint  bond  of  the  defendant  and  the  other  person  mentioned, 
though  it  agrees  in  date  and  amount  with  the  bond  described  in 
the  declaration.^  So,  if  the  declaration  is  against  one  as  princi- 
pal and  the  other  as  surety,  and  the  evidence  is  a  bond  given  by 
the  two  as  sureties  only,  it  is  a  variance  equally  fatal.^ 

Best  on  Presumptions,  pp.  187  -  189.    The  where  a  judgment  was  obtained  in  one 

whole   subject  of  Presumptive  Evidence  State  against  one  J.  P.  M.  and  an  action 

has  been  treated  with  much   ability   and  on  said  judgment  was  brought  in  another 

clearness  by  Mr.  Best,  in  his   Treatise  on  State  against  one  J.  P.  M.,  the  identity  of 

Presumptions  of  Law  and  Fact.     The  lapse  the  defendant  will  be  presumed.     Thomp- 

of  twenty  years  is  now   made  a  bar,  by  son  v.  Manrow,  1  Cal.  428.] 

Stat.  3  &  4  W.  4,  c.  42.     See  also  Massa-  ^  Rice  v.  Thompson,  2  Bailey,  R.  339. 

chusetts,   Rev.    Stat.   ch.  120,  §  7  ;  Maine,  [The  plea  of  non  est  factum  to  an  action  of 

Rev.  Stat.  ch.  146,  §  11.  debt  on  a  note  puts  in  issue  only  the  exe- 

1  Tarver    v.   Rankin,    3    Kelley,    210.  cution  of  the  note ;  fraud,  covin,  or  illegal- 

And  see  Sewall  v.  Sparrow,  16  Mass.  24 ;  ity   of   consideration    cannot    be    proved 

9  Johns.  221  ;    7  Wand,  301.     [Under  a  under  it.     Chambers  v.  Games,  2  Greene 

plea  of  nil  debet,  to  an  action  upon  a  judg-  (Iowa),  320.] 

ment  recovered  in  another  State,  payment  *  Commissioners  v.  Hanion,   1  Nott  & 

may    be    proved,   and    a   receipt    signed  McC.  554. 

by  the  plaintiff,  acknowledging  payment,  ^  The  Postmaster-General  v.  Ridgway, 

though  it  be  not  under  seal,  is  admissible  Gilpin,  R.  135. 

as/)n.7ia_/acie  evidence  of  payment.     Clark  ^  Bean  v.  Parker,  17  Mass.  605.     [An 

V.  Mann,  33  Maine,  268.     Nil  debet  cannot  instrument  by  which  three  persons  bound 

be  pleaded  to  an  action  on  the  judgment  themselves  to  pay  a  sum  of  money,  and 

of  a  court  of  another  State.     Buchanan  v,  which  purported  to  be  under  their  hands 

Port,   5   Ind.    (Porter,)    264;  Hensley   v.  and  seals,  was  signed  by  one  of  the  parties 

Force,  7  Eng.  756.]  'without  a  seal,  and  it  was  held,  upon  de- 

^  R)ot  V.  Fellowes,  6   Cush.  29.     [See  murrer,  that  one  action  of  debt  might  be 

also  Barry  v.  Carothers,  6  Rich.  331 ;  Du-  brought  against  all   the  parties.     Rankin 

common  v.  Hysinger,  14  111.  249.    And  v.  Roler,  8  Gratt.  63.] 


276  LAW   OF  EVIDENCE.  fPABl  IV. 


DEED. 

!•  §  293.  Plea  of  non  est  factum  puts  in  issue  the  validity  of  the  execution  of  the  instru' 
ment 

294.  Burden  of  proof  of  the  formal  execution  of  a  deed  is  upon  party  claiming  un- 

der it. 

295.  Any  evidence  tending  to  prove  the  formal  execution  of  a  deed  sufiBcient  to 

entitle  it  to  go  to  the  jury. 

296.  Several  impressions  upon  one  piece  of  wax  sufficient  sealing  by  several 

grantors.    Not  indispensable  that  witness  should  remember  the  sealing. 

297.  No  form  of  words  necessary  to  constitute  delivery ;  certain  acts  sufficient. 

298.  Authentication  by  a  notary-public  sufficient  proof  of  a  deed  formally  exe- 

cuted in  a  foreign  country. 

299.  Where  instrument  is  required  by  law  to  be  acknowledged  and  registered,  or  ap- 

proved by  some  officer,  practice  not  uniform  as  to  effect  of  such  act. 

300.  Under  plea  of  non  est  factum,  defendant  may  prove  that  the  deed  was  originally 

void,  or  made  so  by  matter  subsequent  to  its  execution  and  before  the  time  of 
pleading.  Matters  showing  deed  voidable  by  common  law  must  be  specially 
pleaded.] 

§  293.  When  a  deed  or  specialty  is  the  foundation  of  the  ao 
tion,  whether  it  be  an  action  of  covenant  or  of  debt,  and  the  de- 
fendant would  deny  the  genuineness  or  legal  formality  of  execution 
of  the  instrument,  this  fact  is  put  in  issue  by  the  plea  of  non  est 
factum.  Under  this  plea,  the  plaintiff  need  not  prove  the  other 
averments  in  his  declaration.^ 

§  294.  The  burden  of  proof  of  the  formal  execution  of  a  deed, 
whether  it  is  put  in  issue  by  a  special  plea  or  is  properly  contro- 
verted under  any  other  issue,  is  upon  the  party  claiming  under  it. 
This  proof  consists  in  producing  the  deed,  removing  any  suspicions 
arising  from  alterations  made  in  it,  and  showing  that  it  was 
signed,  sealed,  and  delivered  by  the  obligor ;  and  where  any  par- 
ticular formalities  are  required  by  statute,  as  essential  to  its  valid- 
ity, such  as  a  stamp,  or  the  like,  the  party  must  show  that  these 
have  been  complied  with. 

1  Chitty  on  PI.  424,  428 ;  Kane  v.  San-  Barb.  S.  C.  R.  449.  As  to  the  proof  of 
ger,  14  Johns.  89 ;  Gardiner  v.  Gardiner,  a  lost  deed,  see  ante,  VoL  1,  §  558, 
10  Johns.  47 ;  The  People  v.  Rowland,  5     note. 


PART  IV.]  DEED.  277 

§  295.  The  subject  of  the  production  of  deeds,  and  of  the  nature 
and  effect  of  alterations  in  them,  has  been  treated  in  the  preceding 
volume.^  The  cases  in  which  the  evidence  of  the  subscribing  wit- 
nesses is  dispensed  with  have  also  been  considered.^  In  the  proof 
of  signing  and  sealing^  it  is  not  necessary  that  the  witnesses  should 
have  seen  this  actually  done ;  it  is  sufficient  if  the  party  showed  it 
to  them  as  his  hand  and  seal,  and  requested  them  to  subscribe  the 
instrument  as  witnesses.^  So,  where  the  witness  was  requested  to 
be  present  at  the  execution  of  the  writings,' and  saw  the  money 
paid,  and  proved  the  handwriting  of  the  obligor,  but  did  not  see 
him  sign,  seal,  or  deliver  the  instrument,  this  was  held  sufficient 
proof  to  admit  the  instrument  to  go  to  the  jury.^  If  the  attesting 
witness  has  no  recollection  of  the  facts,  but  recognizes  his  own  sig- 
nature as  genuine,  and  from  this  and  other  circumstances,  which 
he  states  to  the  jury,  has  no  doubt  that  he  witnessed  the  execution 
of  the  instrument,  this  also,  uncontradicted,  has  been  held  suffi- 
cient.^ And  if  the  witness  recollects  seeing  the  signature  only, 
but  the  attestation-clause  is  in  the  usual  form,  the  jury  will  be  ad- 
vised, in  the  absence  of  controlling  circumstances,  also  to  find  the 
sealing  and  delivery.^  Indeed,  if  there  is  any  evidence,  however 
slight,  tending  to  prove  the  formal  execution  of  the  instrument,  it 
is  held  sufficient  to  entitle  it  to  go  to  the  jury."     If  the  signature 

1  Ante,  Vol.  1,  §§  144,559-563,564-  Walk.    Introd.    354);    Vermont   (Eev.   St. 

568.  1839,  ch.  60,  §  4) ;   Georgia  (Prince's  Dig. 

^  Ante,  Vol.  1,  §§  569-575.     As  to  the  p.  160,  §   6);   Florida  (Thoraps.   Dig.  p. 

proof  of  the   formal   execution  of  deeds,  177);    Michigan    (Rev.    St.    1846,  ch.  65, 

see  4  Cruise's  Dig.  tit.  32,  ch.  2,  Green-  §  8) ;  and  Arkansas  (Rev.  St.  1837,  ch.  81, 

leaf's  notes  [2d  edition,  1856].  §  12) ;    two  witnesses  are  required  to  the 

^  Munns  v.  Dupont,  3  Wash.  42  ;  Led-  validity  of  a  deed  of  conveyance  of  lands, 

gard  V.  Thompson,  11  M.  &  W.  41  ;  Infra,  In  Indiana  (Rev.  St.  1838,  ch.  44,  §  7) ; 

tit.  Wills,  §  676.  New  Jersey  (Elmer's    Dig.  p.  83,    §  12)  ; 

*  Lesheri;.  Levan,  2  Dall.  96.  Illinois  (Rev.  St.  1833,  p.  131,  §  9);  and 

6  Pigott  V.  Holloway,  1  Binn.  436.     See  in  Alabama  (Aikin's  Dig.  p.  88),  the  deed 

also  Dewey  v.  Dewey,  1  Met.  349 ;  Quim-  must   be   either    acknowledged    before    a 

by  V.  Buzzell,  4  Shepl.  470 ;  New  Haven  magistrate,  or  be  proved  by  one  or  more 

Co.  Bank  v.  Mitchell,  15  Conn.  R.  206;  of  the  attesting  witnesses,  before  it  is  ad- 

Ante,  Vol.  1,  §  572  ;   Pearson  v.    Wight-  missible  in   evidence.     But  in   the  latter 

man,  1  Const.  Rep.  344  ;  Denn  v.  Mason,  State,  the  statute  is  not  considered  as  ex- 

iCoxe,  R.  10;  Currie  r.  Donald,  2  Wash,  eluding   the  proof   by    evidence    aliunde. 

58  ;  Russell  v.  Coffin,  8  Pick.  143.  Robertson  v.  Kennedy,  1   Stew.  245.     See 

s  Burling  v.  Paterson,  9  C.  &  P.  570 ;  further,   as   to  witnesses,  4  Cruise's  Dig. 

Curtis  V.   Hall,    1    South.  148;  Long   v.  tit.  32,  ch.  2,  §77,  note  (Greenl.  ed.)  [2d 

Ramsay,  1  S.  &  R.  72.  ed.    1856].     Whether  a   deed,   invalid  to 

■^  Berks.  Turnp.  Co.  v.  Myers,  6  S.  &  R.  pass  the  estate,  for  want  of  witnesses,  can 

12  ;  Sigfried  v.  Levan,  Id.  308 ;  Scott  v.  be  read  to  support  an  action  of  covenant, 

Galloway,  11  S.  &  R.  347  ;    Churchill  v.  on  proof  of  its  execution  at  common  law 

Speight,  2  Hayw.  338.    In  New  Hampshire  qucere;  and   see  French   v.   French,  3   N. 

(Rev.  St.  ch.  130,  §  3)  ;   Conn&-licut  (Rev.  Hamp.  R.  234  ;  Pritchard  v.  Brown,  4  N. 

St.  1838,  p.  390;    Coit  v.   Starkweather,  Hamp.  R.  397 ;  Merwin  v.  Camp,  3  Conn. 

8  Couu.   R.  293) ;    Ohio  (3  Ohio   R.  89,  R.  35,  41. 


278 


LAW   OF   EVIDENCE. 


[part  IV. 


of  the  obligor's  name  is  made  by  a  stranger,  in  his  presence  and 
at  his  request,  it  is  a  sufficient  signing.^ 

§  296.  In  regard  to  sealing,  where  there  are  several  obligors, 
or  grantors,  it  is  sufficient  if  there  be  several  impressions,  though 
there  be  but  one  piece  of  wax.^  And  in  the  sale  of  lands  by  a 
committee  of  a  corporation,  it  is  sufficient  if  the  deed  have  but  one 
seal,  if  it  be  signed  by  all  the  members  of  the  committee.^  If  the 
deed  bears  on  its  face  a  declaration  that  it  was  signed  and  sealed, 
and  there  is  a  seal  upon  it,  proof  of  the  signature  is  evidence  to  be 
left  to  a  jury  that  the  party  sealed  and  delivered  it,  even  though 
the  witness  does  not  recollect  whether  or  not  it  had  a  seal,  at  the 
time  of  attestation.*  And  if  the  party,  on  being  inquired  of,  ac- 
knowledge his  signature  without  objection,  this  also  is  sufficient,^ 
though  it  were  signed  without  his  authority.^ 

§  297.  The  delivery  of  a  deed  is  complete,  when  the  grantor  or 
obligor  has  parted  with  his  dominion  over  it,  with  intent  that  it 
shall  pass  to  the  grantee  or  oVjligee  ;  provided  the  latter  assents 
to  it,  either  by  himself  or  his  agent.     It  follows,  therefore,  that  no 


1  Rex  V.  Longnor,  1  Nev.  &  Mann.  576. 
So  the  party's  mark  is  a  sufficient  signature. 
Pearcy  v.  Dicker,  13  Jur.  997  ;  [Pierce  v. 
Hakes,  23  Penn.  State  R.  (11  Harris) 
231.] 

2  Perk.  §  134.  It  lias  also  been  held, 
that  many  obli<;ors  may  adopt  one  seal. 
HoUis  I'.  Pond,  7  Humph.  222.  See,  as  to 
seals,  4  Cruise's  Dig.  tit.  32,  ch.  2,  §  54, 
note  (Greenl.  ed.)  [2d  ed.  1856].  In  Ken- 
tucky, obligatory  writings  without  seal  are 
placed  on  the  footing  of  specialties,  by 
Stat.  1812,  ch.  375,  §  8  ;  Hughes  v.  Parks, 
4  Bibb,  R.  60;  Handley  v.  Rankin,  4 
Monr.  556.  [And  a  seal  by  a  wafer  or 
other  tenacious  substance,  upon  which  an 
impression  is  or  may  be  made,  is  a  valid 
seal  to  a  deed.  Tasker  v.  Bartlett,  5  Cush. 
359.  A  quitclaim  deed  from  two  grantors, 
signed  and  sealed  by  each  of  them,  and 
signed  by  their  wives  with  one  seal  against 
both  signatures,  and  concluding  after  the 
clause  of  release  of  dower  :  "  In  witness 
whereof,  we  the  grantors  have  hereunto 
set  our  hands  and  seals,"  is  sufficient  to 
bar  the  dower  of  the  wives.     lb.] 

3  Decker  v.  Freeman,  3  Greenl.  338. 
So,  if  a  bond  be  executed  by  a  private 
agent  of  several  obligors,  one  seal  is  suf- 
ficient.    Martin  v.  Dortch,  1  Stew.  479. 

*  Talbot  V.  Hodson,  7  Taunt.  251  ;  2 
Marsh.  527,  S.  C. ;  BaU  v.  Taylor,  1  C.  & 
P.  417.  In  some  modern  cases  it  is  held, 
that  proof  of  the  signature  alone  is  suf- 


ficient proof  of  the  seal,  though  there  be 
no  mention  of  the  seal  in  the  body  of  the 
instrument.  Merritt  v.  Cornell,  5  N.  Y. 
Leg.  Obs.  p.  300  ;  Tavlor  v.  Glaser,  2  S. 
&  R.  504 ;  Sicard  v.  Davis,  6  Pet.  137  ; 
Lesher  v.  Levan,  2  Dall.  90. 

6  Byers   v.   McClanahan,    6   Gill   &  J 
250. 

^  Hill  V.  Scales,  7  Yerg.  410.  In  several 
of  the  American  States,  south  of  New  York, 
a  scroll,  made  with  a  pen,  denoting  the 
place  of  a  seal,  is  held  a  sufficient  sealing. 
4  Kent,  Comm.  453;  M'Dill  v.  M'Dill, 
1  Dall.  63  ;  Long  v.  Ramsay,  1  S.  &  R. 
72 ;  Taylor  v.  Glaser,  2  S.  &  R.  504.  But 
in  some  States  it  is  necessary  that  the 
instrument  should  in  such  cases  contain 
some  expression  showing  an  intent  to 
give  it  the  effect  of  a  sealed  instrument. 
Baird  v.  Blaigrove,  1  Wash.  170;  Austen 
V.  Whitlock,  1  Munf.  487  ;  Anderson  v. 
Bullock,  4  Munf  442  ;  or,  at  least,  that 
the  obligor  acknowledged  it  as  his  seal. 
United  States  v.  Coffin,  Bee,  R.  140.  Iq 
New  Jersey,  the  scroll  is  restricted  to  mon- 
ey bonds.  Hopewell  v.  Amwell,  1  Halst. 
169.  See  also  Newbold  v.  Lamb,  2  South. 
449.  But  it  seems  that  such  an  instru- 
ment, in  States  where  the  common-law 
rule  prevails,  would  still  be  regarded  only 
as  a  simple  contract.  Adam  v.  Kerr,  1  B. 
&  P.  360 ;  Warren  v.  Lynch,  5  Johns 
239. 


PABT  IV.]  DEED.  279 

form  of  words  is  necessary,  if  the  act  is  done  ;  and  that  the  deliv- 
ery may  be  complete,  without  the  presence  of  the  other  party,  or 
any  knowledge  of  the  fact  by  him,  at  the  time,  if  it  be  made  to  his 
previously  constituted  agent,  or  if,  being  made  to  a  stranger,  the 
transaction  is  subsequently  ratified, ^  The  receipt  of  the  purchase- 
money,  or  bringing  an  action  to  recover  it,  is  evidence  of  the  de- 
livery of  the  deed.2  So,  where  the  obligor,  after  signing  and  seal- 
ing a  bond,  held  it  out  to  the  obligee,  saying,  "  Here  is  your  bond  ; 
what  shall  I  do  with  it  ? "  this  has  been  held  a  sufficient  deliv- 
ery, though  it  never  came  to  the  actual  possession  of  the  obligee.' 
So,  if  the  parties  meet,  read,  sign,  and  acknowledge  the  deed  be- 
fore the  proper  officer,  this  has  been  held  sufficient  evidence  of  de- 
livery, though  the  deed  remained  afterwards  in  the  possession  of 
the  grantor.*  Putting  the  deed  in  the  post-office,  addressed  to 
the  grantee,  is  also  held  sufficient.^  If  the  effect  of  the  instrument 
is  beneficial  to  the  party  to  whom  it  is  made,  as,  for  example,  if  it 
be  an  absolute  conveyance  of  land  in  fee-simple,  or  an  assignment 
to  pay  a  debt,  his  assent  to  it  will  be  presumed.^  The  possession 
of  a  deed  by  the  grantee  or  obligee  is,  in  the  absence  of  opposing 
circumstances,  prima  facie  evidence  of  delivery.'^  So,  also,  is  the 
registration  of  a  deed  by  the  grantor,  if  it  be  done  for  the  use  of 

1  Porter  V.  Cole,  4  Greenl.  25,  26,  per  the   grantor,  it  becomes  a  good  delivery 

Mellen,  C.  J. ;  Ante,  Vol.  1,  §  568,  note  upon  the  hap])ening  of  the  contingency, 

(8)  ;  4  Cruise's  Dig.  tit.  32,  ch.  2,  §§  46,  and  relates  back  so  as  to  devest  the  title 

64,  notes  (Greenlcaf 's  ed.)  [2d  ed.  1856] ;  of  the  grantor,  by  relation  from  the  first 

Mills  V.  Gore,  20  Pick.  28,  36;  Hatch  v.  delivery.     Foster  y.  Mansfield,  3  Met.  412  ; 

Hatch,  9  Mass.  307  ;  Maynard  v.  Maynard,  O'Kelly  v.  O'Kelly,  8  lb.  436.     And  the 

10  Mass.  456 ;  Harrison  v.  Phillips'  Acad-  delivery  may  be   made  as  well  after  the 

emy,   12  Mass.  456;  Chapel   v.  Bull,   17  deed  has  been   recorded  as  before  it  was 

Mass.  213,  220;  Woodman  v.  Coolbroth,  put  on  record.     Parker  v.  Hill,  lb.  447.] 

7    Greenl.    181;  Goodrich    v.    Walker,    1  [*  Proof  of  the  execution  of  a  deed  implies 

Johns.  Cas.  256  ;  Barnes  v.  Hatch,  3  N.  proof  of  its  delivery,  unless  the  objection 

Hamp.  R.  304 ;  Ward  v.  Lewis,  4  Pick,  be  raised  at  the   time,  during  the  trial. 

588  ;  Goodright  v.  Gregory,  Lofft,  R.  339.  Van  Rensselaer  v.  Sccor,  32  Barb.  469,] 

Though  the  grantor  die  before  the  deed  '^  Porter  v.  Cole,  4  Greenl.  20. 

reaches  the  hands  of  the  grantee,  it  is  still  ^  Folly  v.  Vantuyl,  4  Halst.  153.     See 

a  good  delivery.     Wheelwright  v.  Wheel-  also  Byers  v.  McCi.inahan,  6  G.  &  J.  250. 

Wright,  2  Mass.  447.     And  it  is  not  neces-  *  Scrugham  v.  Wood,  15  Wend.  54.5. 

sary  that  the  delivery  be  made  to  an  agent  ^  McKinney  v.  Rhoades,  5  Watts,  .343. 

of  the  grantee  or  obligee.     Doe  v.  Knight,  ^  Camp  v.  Camp,  5  Conn.  R.  291  ;  Jack- 

5  B.  &   C.   671,     It  may  remain  in  the  son  v.  Bodle,  20  Johns.   184;  Halsey  v. 

grantor's  own    custody,    as   bailee.     Id. ;  Whitnev,  4  Mason,  R.  206. 

Scrugham  v.  Wood,  15"Wend.  545  ;  Hall  v.  7  Mailorv  v.  Aspinwall,  2  Dav,  R.  280  ; 

Palmer,  8  Jur.  459 ;  Hope  v.  Harman,  11  Clarke  i\  Ray,  1  H.  &  J.   323;  Ward  v. 

Jur.    1097.     See,   further,    Verplanck    v.  Lewis,  4  Pick.  518 ;  Union  Bank  f.  Ridg- 

Steiry,  12  Johns.  536;    Ruggles  v.  Law-  ley,  1  H  &  Gill.  324;  Hare  v.  Horton,  2 

son,  13  Johns.  285  ;  Gardner  v.  Collins,  3  B.  &  Ad.  715  ;  Maynard  v.  Maynard,  10 

Mason,    R    398 ;  Harris   v.    Saunders,   2  Mass.  456,  458 ;  Den  v.  Fairlee,   1   New 

Strobh.  Eq.  370.     [If  the  grantor  deliver  Jersey,  279  ;  [Chandler  ».  Temple,  4  Cush. 

a  deed  to  a  third  person,  to  be  by  him  de-  285  ;'Bulkley  v.  Buffington,   5   McLean, 

livered  to  the  grantee  after  the  death  of  457.] 


280  LAW   OF  EVIDENCE.  [PART  IV. 

the  grantee.!  And  where  the  instrument  was  executed  in  the 
presence  of  a  witness,  who  signed  his  name  to  the  attestation- 
clause,  which  was  in  the  usual  formula  of  "  signed,  sealed,  and  de- 
livered," but  the  deed  had  never  been  out  of  the  actual  possession 
of  the  grantor ;  it  has  been  held  that,  in  the  absence  of  opposing 
circumstances,  the  jury  might  properly  find  that  it  was  delivered.^ 
And  a  deed  duly  executed  and  acknowledged  will  be  presumed  to 
have  been  delivered  on  the  day  of  its  date,  unless  the  contrary  is 
proved ;  the  burden  of  proof  being  on  the  party  alleging  a  delivery 
on  another  day.^ 

§  298.  If  the  instrument  is  formally  executed  in  a  foreign  coun- 
try, and  the  execution  is  authenticated  hy  a  notary-puhlie,  this  is 
sufficient  proof  to  entitle  it  to  be  read.*  But  if  the  authentication 
was  before  the  mayor  of  a  foreign  town,  it  is  not  received  without 
some  evidence  of  his  holding  that  office.^ 

§  299.  Where  the  instrument  is  required  by  law  to  be  acknowl- 
edged and  registered,  or  to  be  examined  and  approved  by  a  judge 
or  other  public  officer,  as  is  the  case  of  some  official  bonds,  such 
acknowledgment  or  other  official  act,  duly  authenticated,  is  in 
some  courts  considered  as  prima  facie  evidence  of  all  the  circum- 

1  Hedge  v.  Drew,  12  Pick.  141  ;  Chess  as  evidence  to  go  to  the  jury  upon  the 

I'.  Chess,  1  Penn.  32.     And  see   Powers  question  whether   they  will  presume  the 

V.  Russell,  13  Pick.  69  ;  Elsey  v.  Metcalf,  existence  and  loss  of  such  a  deed.     Towns- 

1    Denio,  R.   323;    Commercial  Bank  v.  end  v.  Downer,  32  Vt.  183.] 

Reckless,  1  Halst.  Ch.  R.  430 ;  Ingraham  ^  Hope    v.    Harmann,    11    Jur.    1097. 

V.    Grigg,    13   S.    &  M.    22  ;  Rathl)un  v.  And  see  HaU  ».  Baiubridge,  12  Ad.  &  El. 

Rathbun,   6  Barb.  S.  C.   R.   98.     [*  An  699,  N.  S. 

ancient  deed  or  record  proves  of  itself  no  ^  McConnell  v.  Brown,  Litt.   Sel.  Cas. 

title  in  the  grantee.     Such  proof  must  l)e  4.59 ;  Elsey  v.   Metcalf,  1    Denio,  R.   323. 

accompanied  with  evidence  of  possession  [*  The  date  of  a  deed  is  onlv  presumptive 

corresponding  with  the  deed,  or  of  title  in  evidence  of  the  time  of  its  delivery,  and  that 

the  grantor.     Bank  of  Middlebury  v.  Rut-  presumption  does  not  arise  when  there  Ls 

land,  33  Vt.  414.     If  a  deed  conveying  an  no  proof  or  acknowledgment  or  subscribing 

entire  tract  of  land,  or  several  different  witness ;  and  it  is  utterly  repelled  when  it 

parcels  of  land,  is  sought  to  be  proved  by  appears  in  the  proofs  that  the  instrument 

presumptive    evidence,  possession   by  the  continued  in  the  hands  of  its  grantor  until 

grantee  of  a  part  of  the  tract  or  of  some  after  its  date.     Harris  v.  Norton,  16  Barb, 

of  the  parcels  claiming  under  the  deed  is  264.] 

evidence  to  prove  its  existence  in  a  suit  in  *  Lord  Kinnaird  v.    Lady    Saltoun,    1 

which  the  title  to  a  part  of  the  tract  or  to  Madd.  R.  227. 

some  of  the  parcels  comes  in  question,  al-  ^  Garvey  v.  Hibbert,  1  Jack.  &  W.  180. 

though  there  lias  been  no  actual  possession  [A  registry  copy  of  a  deed,  executed  in 

of  the  portion  or  separate  parcel  sued  for.  1792,   acknowledged  before    the  "Mayor 

Though  the  ancient  record  of  a  deed  im-  of  the  city  of  Hudson,"  and  recorded  in 

properly  acknowledged  is  not  of  itself  evi-  the  proper  registry  of  deeds  in  Massachu- 

dence  of"  the  execution  of  the  deed,  yet  such  setts,  in   1802,   may  be  read  in   evidence 

record,  in  connection  with  long  and  undis-  in  a  suit  in   Massachusetts,   in    the    ab- 

pnted  possession  consistent  with  the  deed,  sencc    of    anything    to    show    that    the 

and  other  circumstances  which  tend  as  a  acknowledgment   was  not  properly  made 

matter  of  fact  to  show  the  probable  exocu-  before  such  officer.     Palmer  v.  Stevens,  2 

tjon  and  loss  of  such  a  deed,  is  admissible  Gray,  147.] 


PART  IV.] 


DEED. 


281 


stances  necessary  to  give  validity  to  the  instrument  and  of  course 
will  entitle  it  to  be  read.^  But  the  practice,  in  thij  particular,  is 
not  sufficiently  uniform  to  justify  the  statement  of  it  as  a  general 
rule. 

§  300.  Under  the  issue  of  7ion  est  factum,  the*  defendant  may 
prove  that  the  deed  was  delivered,  and  still  remains  as  an  escrotv  ;  ^ 
or  he  may  take  advantage  of  any  material  variance  between  the 
deed  as  set  forth  by  the  plaintiff  and  the  deed  produced  at  the 
trial ;  ^  or  may  give  any  evidence  showing  that  the  deed  either  (1.) 
was  originally  void,  or  (2.)  was  made  void  by  matter  subsequent 
to  its  execution  and  before  the  time  of  pleading ;  for  it  is  to  the 
time  of  pleading  that  the  averment  relates.  Thus,  the  defendant 
may  show  under  this  issue  that  the  deed  is  a  forgery ;  that  it  was 
obtained  by  fraud ;  or  was  executed  while  he  was  insane,  or  so  in- 
toxicated as  not  to  know  what  he  was  about ;  or  that  it  was  made 
by  a  feme  covert ;  or  to  her,  but  her  husband  disagreed  to  it ;  or 
that  it  was  delivered  to  a  stranger  for  the  use  of  the  plaintiff,  who 
refused  it ;  or  that  it  was  never  delivered  at  all.'*     Or  he  may  show 


1  See  ante,  Vol.  1,  §  573;  Craufurd  v. 
The  State,  6  H.  &  J.  234.  In  the  follow- 
ing States,  a  deed  duly  acknowledged 
seems  admissible  in  evidence,  without 
further  proof;  namely,  Neio  York  (see  1 
Kev.  Stat.  p.  759,  §  16)  ;  New  Jersey  (El- 
mer's Dig.  p.  83,  §  12)  ;  Pennsylvania 
(Pardon's  Dig:.  1837,  p.  251,  §  5)  ;  Vir- 
ginia (Kev.  Code,  1819,  Vol.  1,  p.  363, 
§6);  North  Carolina  (Rev.  Stat.  1837, 
Vol.  1,  p.  226,  §  6);  Georgia  (Prince's 
Dig.  1837,  p.  212,  §  lOJ);  Alabama  (Ai- 
kin'sDig.  1833,  p.  88,  §  1)  ;  Illinois  (Rev. 
Stat.  1833,  pp.  135,  136,  §  17);  Missis- 
sippi (Aden  &  Van  Hoesen's  Dig.  1839, 
p.  297,  §  1);  and  Missouri  (Rev.  Stat. 
1835,  p.  123,  §  35).  As  to  the  acknowl- 
edgment of  deeds,  see  4  Cruise's  Dig.  tit. 
32,  ch.  2,  §  80,  note  (Greenleafs  ed.)  [2d 
ed.  1856].  In  Massachusetts,  a  registry 
copy  of  a  deed  of  land  is  not  admissible 
in  evidence  against  the  grantee,  without 
notice  to  him  to  produce  the  original 
Commonwealth  v.  Emery,  2  Gray,  80 ; 
Browne  v.  Boston,  lb.  494.  [*  An  office 
copy  of  a  deed  inter  partes  executed  in  pais, 
acknowledged  and  recorded  in  the  courts 
of  another  State,  is  not  such  a  record  or 
judicial  proceeding  as  can  be  authenticat- 
ed under  the  act  of  Congress  of  1794, 
though  it  might  perhaps  be  included  un- 
der the  supplemental  act  of  1804.  War- 
ren V.  Wade,  7  Jones,  Law,  494.] 

2  Bull.  N.    P.  172;  1  Chitty,  PI.   424; 
Stoytes  V.  Pearson,  4  Esp.  255 ;    Union 


Bank  of  Maryland  v.  Ridgely,  1  H,  &  G 
324. 

3  1  Chitty,  PI.  268,  269,  316  ;  Ante,  Vol. 
1,  §  69;  Howell  v.  Richards,  11  East, 
633 ;  Swallow  v.  Beaumont,  1  Chitty,  R. 
518;  Horsefall  i-.  Testar,  7  Taunt.  385; 
Jlorgan  v.  Edwards,  6  Taunt.  394;  2 
Marsh.  96,  S.  C. ;  Bowditch  v.  Mawlev, 
1  Campb.  195;  Birch  v.  Gibbs,6M.  &  S. 
115.  [*  A  variance  in  the  middle  initial 
letter  of  the  name  of  the  grantor  as  written 
in  the  body  and  in  the  signature  of  the 
deed  will  not  vitiate  the  deed.  Erskine  v. 
Davis,  25  111.  251.  A  deed  ran  to  Louis 
S. ;  it  appeared  that  no  person  of  that 
name  was  known  to  exist,  and  the  circum- 
stances of  the  transaction  clearly  showed 
that  the  intended  grantee  was  Arnold  S., 
who  had  possession  of  the  deed.  Held, 
that  this  was  a  latent  ambiguity  ex- 
plainable by  parol,  and  the  title  passed  to 
Arnold  S.  Staak  v.  Sigelkow,  12  Wis. 
234.] 

*  Bull.  N.  P.  172;  1  Chittv,  PI.  425; 
Whelpdale's  case,  5  Co.  1 19 ;  Pitt  v. 
Smith,  3  Campb.  33 ;  Dorr  v.  Munsell, 
13  Johns.  430  ;  Van  Valkenburg  v.  Rouk, 
12  Johns.  337 ;  Roberts  v.  Jackson,  1 
Wend.  478  ;  Jackson  v.  Perkins,  2  Wend. 
308;  Wigglesworth  v.  Steers,  1  Hen.  & 
Munf.  69 ;  Curtis  v.  Hall,  1  South.  361. 
As  to  the  principles  on  which  chancery 
acts  in  setting  aside  deeds  on  the  ground 
of  the  intoxication  of  the  grantor,  see 
Nagle  V.  Baylor,  3  Dru.  &  War.  60. 


282  LAW   OF  EVIDENCE.  [PART  IV. 

that,  since  its  execution,  it  has  become  void  by  being  materially  al- 
tered or  cancelled  by  tearing  off  the  seal.^  But  matters  which  do 
not  impeach  the  execution  of  the  deed,  but  go  to  show  it  voidable 
by  common  law,  or  by  statute,  such  as  usury,  infancy,  duress, 
gaming,  or  that  it  was  given  for  ease  and  favor,  or  the  like,  must 
be  specially  pleaded.^  And  here  it  may  be  observed,  that,  under  a 
general  plea  oinon  est  factum,  the  burden  of  proving  the  deed  lies 
upon  the  plaintiff;  but  that,  under  any  special  plea  of  matter  in 
avoidance  of  the  deed,  the  burden  of  proving  the  plea  lies  upon  the 
defendant.^ 

1  Leyfield's  case,  10  Co.  92.  The  in-  will  be  required  to  prove  that  it  was  upon 
tent  with  which  the  cancellation  was  made  the  deed  at  the  time  of  its  execution.  Em- 
is  a  fact  to  be  found  by  the  jury.  Grum-  erson  v.  Murray,  4  N.  Hamp.  171.  [*In 
mer  v.  Adams.  13  Law  Journal,  40,  N.  S.  Maryland  it  is  held  that  parol  proof  is  in- 

2  1  Chitty,  PL  425  ;  Manner  i'.  Wright,  admissible  to  show  a  valuable  consideration 
2  Stark,  R.  35  ;  Colton  v.  Goodridge,  2  for  a  deed  expressed  on  its  face  to  be  in  con- 
W.  Bl.  1108;  BuU.  N.  P.  172.  sideration  of  love  and  affection,  in  order  to 

3  Snell  ?;.'Snell,  4  B.  &  C.  741 ;  Bush-  sustain  it  against  creditors.  Ellinger  v. 
ell  V.  Passmore,  6  Mod.  218,  per  Holt,  C.  Growl,  17  Maryland,  361.  ^Vhere  the  deed 
J. ;  5  Com.  Dig.  Pleader,  2  W.  18.  If  an  recites  a  money  consideration,  though  it  be 
indorsement  on  the  back  of  a  deed  has  no  but  of  a  small  amount,  parol  evidence  to 
signature  and  seal,  but  is  claimed  as  a  establish  a  resulting  trust  is  inadmissible. 
defeasance,  the  party  claiming  it  as  such  Suss  v.  Mebius,  16  Cal.  350.] 


PART  IV.] 


DURESS. 


283 


DURESS. 


[•§  301.  Duress  per  minas  defined. 

302.  Duress  of  imprisonment  supported  by  eyidence  of  any  anlawfhl  restraint  ol 
liberty.] 

§  301.  By  Duress^  in  its  more  extended  sense,  is  meant  that 
degree  of  severity,  either  threatened  and  impending,  or  actually 
inflicted,  which  is  sufficient  to  overcome  the  mind  and  will  of  a 
person  of  ordinary  firmness.^  The  common  law  has  divided  it  into 
two  classes,  namely,  duress  per  minas,  and  duress  of  imprisonment. 
Duress  per  minas  is  restricted  to  fear  of  loss  of  life,  or  of  mayhem, 
or  loss  of  limb  ;  or,  in  other  words,  of  remediless  harm  to  the  per- 
son.^  If,  therefore,  duress  per  minas  is  pleaded  in  bar  of  an  action 
upon  a  deed,  the  plea  must  state  a  threat  of  death,  or  mayhem,  or 
loss  of  limb  ;  and  a  threat  to  this  specific  extent  must  be  proved. 
A  fear  of  mere  battery,  or  of  destruction  of  property,  is  not,  tech- 
nically, duress,  and  therefore  is  not  pleadable  in  bar ;  ^  but  facts  of 


1  Non  suspicio  vel  cnjuslibet  vani  vel 
meticulosi  hominis,  sed  talis  qui  cadere 
possit  in  virum  constantem ;  talis  enim 
debet  esse  metus,  qui  in  se  contineat 
mortis  periculum,  et  corporis  cruciatura. 
Bracton,  lib.  2,  c.  5,  par.  14. 

2  [It  would  seem  that  the  rule  of  law  in 
regard  to  duress  per  minas  is  stated  too 
narrowly  in  the  text.  In  Robinson  o. 
Gould,  11  Cush.  57,  the  Supreme  Judicial 
Court  of  Massachusetts  say  that  "  duress 
by  menaces,  which  is  deemed  sufficient  to 
avoid  contracts,  includes  a  threat  of  impris- 
onment, inducing  a  reasonable  fear  of  loss 
of  liberty.  2  Rol.  Ab.  124;  2  Inst.  482, 
483  ;  Bac.  Ab.  Duress,  A. ;  20  Amer.  Jur. 
24."]  [*  Where  a  married  woman  sought 
to  avoid  her  mortgage  on  the  ground  of 
duress  by  her  husband,  she  was  allowed  to 
offer  evidence  of  the  state  of  her  mind  and 
of  her  health  at  the  time  of  her  acknowl- 
edgment, and  that  this  had  been  preceded 
by  threats  and  menaces  of  her  husband  in 
case  she  should  refuse  it.  Central  Bank 
V.  Copeland,  18  Md.  305.  Terrifying  a 
woman  so  as  nearly  to  produce  hysterics 
by  threats  of  prosecuting  her  husband  for 


alleged  embezzlement,  is  such  coercion  as 
to  avoid  a  transfer  of  her  separate  property 
thus  obtained.  Eadie  v.  Slimmon,  26  N. 
Y.  9.] 

*  1  Bl.  Comm.  131.  In  Louisiana,  any 
threats  will  invalidate  a  contract,  if  they 
are  "  such  as  would  naturally  operate  on  a 
person  of  ordinary  firmness,  and  inspire  a 
just  fear  of  great  injury  to  person,  reputa- 
tion, or  fortune."  Civil  Code,  Louis.  Art. 
1845.  And  the  age,  sex,  health,  and  dis- 
position, and  other  circumstances  of  the 
party  threatened,  are  taken  into  consider- 
ation. Id.  The  contract  is  equally  inval- 
idated by  a  false  report  of  threats,  if  it 
were  made  under  a  belief  of  their  truth; 
and  by  threats  of  injury  to  the  wife,  hus- 
band, descendant,  or  ascendant  of  the 
party  contracting.  Id.  Art.  1846,  1847. 
These  rules  apply  to  cases  where  there 
may  be  some  other  motive  for  making  the 
conti-act,  besides  the  threats.  But  if  there 
is  no  other  motive  or  cause,  then  any 
threats,  even  of  slight  injury,  will  invali- 
date it.  Id.  Art.  1853.  [Nor  will  a  threat 
to  bring  an  action  upon  an  agreement  to 
convey  land  in  fee,  in  consequence  of  which 


284 


LAW   01    EVIDENCE. 


[part  IV. 


this  kiud,  it  is  conceived,  are  admissible  in  evidence  to  make  out  a 
defence  of  fraud  and  extortion  in  obtaining  the  instrument.^ 

§  302.  The  plea  of  Duress  of  imprisomneyit  is  supported  by  any 
evidence  that  the  party  was  unlawfully  restrained  of  his  liberty 
until  he  would  execute  the  instrument.  If  the  imprisonment  was 
lawful,  that  is,  if  it  were  by  virtue  of  legal  process,  the  plea  is  not 
supported ;  ^  unless  it  appear  that  the  arrest  was  upon  process  sued 
out  maliciously  and  without  probable  cause ;  or  that,  while  the 
party  was  under  lawful  arrest,  unlawful  force,  constraint,  or  se- 
verity was  inflicted  upon  him,  by  reason  of  which  the  instrument 
was  executed.^  But  in  all  cases  the  duress  must  affect  the  party 
himself;  for  if  there  be  two  obligors,  one  of  whom  executed  the 
bond  by  duress,  the  other  cannot  take  advantage  of  this  to  avoid 
the  bond  as  to  himself.* 


a  less  estate  in  the  same  land  is  conveyed 
by  deed,  be  such  duress  as  will  avoid  the 
deed.  Harris  v.  Tyson,  24  Penn,  State 
R.  347.] 

1  See  Evans  v.  Huey,  1  Bay,  R.  13; 
Collins  V.  Westbury,  2  Bay,  R.  211; 
James  v.  Roberts,  18  Ohio,  548 ;  Sas- 
portas  V.  Jennings,  1  Bay,  R.  470,  475. 
In  this  last  case  the  rule  is  broadly  laid 
down,  that  where  assumpsit  would  lie  to 
recover  back  the  money,  had  it  been  paid 
under  restraint  of  goods,  a  promise  to  pay 
it,  made  under  the  like  circumstances,  may 
be  avoided  by  a  plea  of  duress.  [*  The 
fact  that  a  note  was  obtained  by  duress 
will  not  be  a  good  defence  against  it  in  the 
hands  of  a  bona  fide  holder  for  valuable 
consideration  paid  before  maturity.  But 
where  fraud,  illegality,  or  duress  in  the 
making  or  original  consideration  is  shown, 
that  will  cast  on  the  plaintiff  the  burden 
of  proving  that  he  is  a  bona  fide  holder  for 
a  valuable  consideration.  Clark  v.  Pease, 
41  N.  H.  414.] 

2  1  Bl.  Comm.  136, 137 ;  Hob.  266,  267  ; 
2  Inst.  482 ;  Anon.  1  Lev.  68,  69  ;  Wil- 
cox V.  Howland,  23  Pick.  167  ;  Waterman 
V.  BaiTatt,  4  Harringt.  311;  [Neally  v. 
Greenough,  5  Foster  (N.  H.)  325.] 

^  Anon.  Aleyn,  92 ;  Watkins  v.  Baird, 
6  Mass.  506 ;  [Soule  v.  Bonuey,  37  Maine, 


128;  Breck  v.  Blanchard,  2  Foster  (N, 
H.)  303;  Taylor  v.  Cottress,  16  111.  93. 
Not  only  is  a  direct  promise  void,  if  made 
under  duress  and  an  illegal  arrest,  but  so 
also  are  admissions  thus  made  of  a  fonner 
promise,  and  the  jury  cannot  inquire 
whether  such  admissions  were  made  be- 
cause they  were  true,  or  because  the  party 
making  them  was  under  duress.  Tilley  v. 
Damon,  11  Cush.  247.]  [*An  arrest, 
though  for  a  just  cause,  and  under  lawful 
authority,  yet  if  it  be  for  an  unlawful  pur- 
pose, is  duress  of  imprisonment.  Sever- 
ance V.  Kimball,  8  N.  H.  386.  A  bond 
given  for  the  maintenance  of  a  bastard 
child,  as  required  by  statute,  is  void  for 
duress,  if  the  warrant  and  other  proceed- 
ings before  the  magistrate  are  not  accord- 
ing to  the  statute.  Fisher  v.  Shattuck, 
17  Pick.  2.52.] 

*  Huscorabe  v.  Standing,  Cro.  Jac.  187; 
Thompson  v.  Lockwood,  15  Johns.  256; 
[Mantel  v.  Gibbs,  1  Brownlow,  64  ;  Wayne 
V.  Sands,  351  ;  Shep.  Touch.  62  ;  McClin- 
tick  V.  Cummins,  3  McLean,  158;  20 
Amer.  Jur.  26;  Robinson  v.  Gould,  11 
Cush.  57.  Sureties  upon  a  recognizance 
cannot  plead  the  duress  of  their  principal 
in  discharge  of  their  liability.  Plumer  v. 
People,  16  111.  358.  But  see  State  v. 
Bruntley,  27  Ala.  44.] 


PART  rV.]  EJECTMENT.  285 


EJECTMENT. 

[*  §  303.  In  all  forms  of  remedy  for  recovery  of  lands,  essential  principles,  so  far  as  law 

of  evidence  is  concerned,  are  the  same. 

304.  Plaintiff  must  prove,  when  general  issue  is  pleaded,  that  he  had  the  legal  estate, 

right  of  entry,  and  that  defendant  was  in  possession. 

305.  Privity  of  estate  between  parties  generally  renders  proof  of  title  unnecessary. 

306.  Proof  of  payment  of  rent  establishes  privity  of  estate. 

307.  "Where  both  parties  claim  from  some  third  person,  suflBcient  to  prove  deriva- 

tion of  title  from  him. 

308.  Identity  of  lands.     Defendant's  possession  proved,  like  other  facts,  by  any 

parol  testimony. 
809.  Lineal  heir  must  prove  seisin  of  his  ancestor,  and  that  he  is  heir. 

310.  Devisee  must  prove  death  and  seisin  of  devisor  and  due  execution  of  will. 

311.  Receipt  of  rent  or  actual  possession  of  premises  prima  facie  evidence  of  title 

in  fee.     Entry  how  far  proof 

312.  Entry  need  not  be  made  by  person  entitled. 

313.  Claimant  of  an  estate  in  remainder  or  reversion  by  descent,  what  he  must  prove. 

314.  Claimant  as  legatee  of  a  term  of  years,  what  he  must  prove. 

315.  Executor,  administrator,  or  guardian  claiming,  what  he  must  prove. 

316.  Purchaser  under  a  sheriff's  sale  on  execution  must  prove  judgment  unless 

defendant  in  ejectment  is  defendant  in  execution. 

317.  At  common  law,  tenants  in  common  cannot  recover  upon  a  joint  demise  ;  oth- 

erwise in  practice  in  many  States. 

318.  An  ouster,  how  proved. 

319.  Where  the  action  is  between  persons  in  privity,  claimant  must  prove  termina- 

tion of  tenancy. 
820.  Proofs  of  termination  of  tenancy. 

321.  Requisite  proofs  where  it  is  determined  by  notice  to  quit. 

322.  Service  of  notice  may  be  proved  by  person  delivering  it.    Contents  may  be 

shown  without  notice  to  produce  original. 
823.  Form  of  notice  must  be  explicit  and  positive,  and  such  that  party  may  act 
upon  it  when  given. 

324.  Service  at  dwelling-house  suflBcient,  and  on  one  of  two  joint  lessees  prima 
facie  service  on  both. 

325.  Notice  not  required  where  the  relation  of  landlord  and  tenant  does  not  exist 

326.  What  plaintiff  must  prove  to  sustain  forfeiture  of  lease  for  non-payment  of 

rent. 

327.  Ejectment  lies  immediately  upon  breach  in  case  of  express  limitation  in  lease. 

328.  Stranger  in  possession,  acting  as  tenant,  suflBcient  pn'wiayacte  evidence  of  un- 

derletting. 

329.  Between  mortgagor  and  mortgagee,  production  and  proof  of  mortgage  deed 

suflBcient 


286  LAW   OF  EVIDENCE.  [PART  IV. 

330.  Payment  of  mortgage  debt  a  good  defence  to  an  action  at  law  for  possession 

hj  mortgagee.     Mortgagor's  remedy  to  gain  possession  in  equity. 

331.  Generally  suflScient  defence  to  rebut  proofs  of  plaintiff. 

332.  Real  damages   recovered  in   an  action   of  trespass  for  mesne  profits.    What 

plaintiff  must  prove. 

333.  How  far  the  record  of  the  judgment  in  an  action  of  ejectment  between  the 

same  parties  is  admissible  in  trespass  for  mesne  profits. 

334.  In  this  action,  plaintiff  must  prove  his  possession  of  the  premises. 

335.  Plaintiff  must  prove  duration  of  defendant's  occupancy. 

336.  Plaintiff's  costs  in  ejectment  allowed  as  damages  in  this  suit. 

337.  Defendant  may  offset  value  of  lasting  improvements  made  in  good  faith  by 

him.     Other  defences.] 

§  303.  This,  which  was  originally  a  personal  action  of  trespass', 
is  now  a  mixed  action,  for  the  recovery  of  land  and  damages,  and 
is  become  the  principal,  and,  in  some  States  the  only  action,  by 
which  the  title  to  real  estate  is  tried,  and  the  land  recovered.  In 
several  of  the  United  States,  the  remedy  for  the  recovery  of  land 
is  by  an  action  frequently  called  an  ejectment,  but  in  form  more 
nearly  resembling  the  writ  of  entry  on  disseisin,  in  the  nature  of 
an  assize.  1  But  in  all  the  forms  of  remedy,  as  they  are  now  used 
in  practice,  the  essential  principles  are  the  same,  at  least  so  far  as 
the  law  of  evidence  is  concerned.  The  real  plaintiff,  in  every  form, 
recovers  only  on  the  strength  of  his  own  title  ;  ^  and  he  must  show 
that  he  has  the  legal  interest,  and  a  possessory  title,  not  barred  by 
the  statute  of  limitations. ^ 

§  304.  When  the  title  of  the  real  plaintiif  in  ejectment  is  con- 
troverted under  the  general  issue,  he  must  prove,  (1.)  that  he  had 
the  legal  estate  in  the  premises,  at  the  time  of  the  demise  laid  in 
the  declaration ;  *  (2.)  that  he  also  had  the  right  of  entry ;  and, 
(3.)  that  the  defendant,  or  those  claiming  under  him,  were  in  pos- 
session of  the  premises  at  the  time  when  the  declaration  in  eject- 
ment was  served." 

1  Jackson  on  Real  Actions,  2,  4.  must  recover.      Busenius   v.    Coffee,    14 

2  Roe  V.  Harvey,  4  Burr.  2484,  2487  ;  Cal.  91.  A  patent  of  land  from  the  State 
Jackson  on  Real  Actions,  p.  .5;  Adams  on  ifi  prima  facie  evidence  of  title  in  the  gran- 
Eject,  pp.  32,285,  by  Tillinghast ;  1  Chit-  tee,  who  is  not  to  be  called  upon  to  pro - 
ty  on  ri.  173;  Williams  v.  Ingalls,  21  duce  proof  of  the  regularitv  also  of  the 
Pick.  288  ;  Martin  v.  Stracban,  5  T.  R.  preliminary  proceedings.  Brady  v.  Begun, 
108,  n. ;    Goodtitle   v.  Baldwin,  11  East,  36  Barb.  533.] 

488,  495  ;  Lane  v.  Reynard,  2  S.  &  R.  65  ;  3  chitty  on  PI.  172  ;  Id.  209  (7th  edit.). 

Covert  V.  Irwin,  3  S.  &  R.  288.    [*  Though  *  [*  And  a  variance  between  proof  and 

in  ejectment,  the  plaintiff  cannot  recover,  allegation,   botli,  however,  fixing  a    date 

except   by   proving   title   in   himself,   yet  prior     to     suit    brought,    is    immaterial, 

when  the  parties  claim  under   conflicting  Stark  v.  Barrett,  15  Cal.  361.] 

titles,  and   the  only  question  is  which  of  6  Adams  on  Eject,  p.  247,  by  Tilling- 

the  two  is  good,  it  is  proper  to  instruct  the  hast, 
jury  that  the  one  having   the  best   title 


PART  IV.]  EJECTMENT.  287 

§  305.  If  d.privit7/  in  estate  has  subsisted  between  tlie  parties, 
proof  of  title  is  ordinarily  unnecessary  ;  for  a  party  is  not  permit- 
ted to  dispute  the  original  title  of  him  by  whom  he  has  been  let 
into  the  possession.^  This  rule  is  extended  to  the  case  of  a  tenant, 
acquiring  the  possession  by  wrong  against  the  owner,  and  to  one 
holding  over  after  the  expiration  of  his  lease.^  And  when  the  re- 
lation of  landlord  and  tenant  is  once  established  by  express  act  of 
the  parties,  it  attaches  to  all  who  may  succeed  to  the  possession 
through  or  under  the  tenant,  whether  immediately  or  remotely ; 
the  succeeding  tenant  being  as  much  affected  by  the  acts  and  ad- 
missions of  his  predecessor,  in  regard  to  the  title,  as  if  they  were 
his  own.^  Even  an  agreement  to  purchase  the  lands,  if  made  de- 
liberately, estops  the  purchaser  from  denying  the  title  of  the  ven- 
dor.* But  evidence  of  an  agreement  for  a  lease,  if  none  was  ever 
executed,  is  not  alone  sufficient  to  establish  this  relation,  against 
a  tenant  already  holding  adversely.^  Nor  is  the  tenant  precluded 
from  showing  that  an  agreement  to  purchase  from  the  plaintiff 
was  made  by  him  under  a  mistake,  or  that  the  title  was  in  himself, 
or  out  of  the  lessor ;  ^  or  that  a  lease,  which  he  has  taken  while  in 
possession,  was  unfairly  imposed  upon  him,  by  misrepresentation 
s.nd  fraud  J  The  same  principle  applies  to  any  other  act  of  ac- 
knowledgment, amounting  to  an  admission  of  tenancy  or  title.* 
But  the  tenant  may  always  show  that  his  landlord's  title  has  ex- 

1  Ante,  Yo\.  I,  §§  24,  25;  Adams  on  323;  Jackson  v.  Scissam,  3  Johns.  499; 
Eject,  p.  247,  by  Tillinghast ;  "Wood  v.  Graham  v.  Moore,  4  S.  &  R.  467  ;  Jack- 
Day,  7  Taunt.  646 ;  1  Moore,  389 ;  Jack-  son  v.  Walker,  7  Cowen,  637  ;  Cooper  v. 
son  V.  Reynolds,  1  Caines,  444  ;  Jackson  Blandy,  4  M.  &  Scott,  562  ;  Doe  v.  Mizen, 
V.  Whitford,  2  Caines,  215  ;  Jackson  v.  2  M.  &  Rob.  56  ;  Barwick  v.  Thompson, 
Vosburg,  7  Johns.  186  ;  Williams  v.  An-  7  T.  R.  488.  The  purchaser  at  a  sheriff's 
napolis,  6  H.  &  J.  533  ;  Jackson  v.  Stewart,  sale  is  privy  to  the  debtor's  title,  and  is 
6  Johns.  34 ;  Jackson  v.  De  Walts,  7  therefore  equally  estopped  with  him. 
Johns.  I.'i7  ;  Jackson  v.  Hinman,  10  Johns.  Jackson  v.  Graham,  3  Caines,  188  ;  Jack- 
292;  Doe  v.  Edwards,  6  C.  &  P.  208.  son  i;.  Bush,  10  Johns.  223. 
The  lessee  of  a  close  in  severalty,  demised  *  Whiteside  v.  Jackson,  1  Wend.  418  : 
to  him  by  one  of  several  tenants  in  com-  Jackson  v.  Walker,  7  Cowen,  637  ;  Jack- 
mon,  cannot  set  up  an  adverse  title  in  bar  son  v.  Norris,  Id.  717  ;  Hamilton  v.  Tay- 
of  an  action  by  his  lessor.  Doe  v.  Mitch-  lor,  Litt.  Sel.  Cas.  444  ;  Doe  v.  Burton,  6 
ell,  1  B.  &  B.  11;  Jackson  v.  Creal,  13  Eng.  Law  &Eq.  R.  325. 
Johns.  116.  s  Jackson  v.  Cooley,  2  Johns.  Cas.  223. 

^  Jackson  v.  Styles,  1  Cowen,  575 ;  Doo  ^  Jackson   v.    Cuerden,   2  Johns.  Cas. 

6'.  Baytnp,  3  Ad."&  El.   188;  4  N.  &  M.  353. 

837.  So,  though  the  landlord's  title  was  '  Brown  v.  Dysinger,  1  Rawie,  R.  408 ; 
acquired  by  wrong.  Parry  v.  House,  Holt's  Miller  v.  M'Brier,  14  S.  &  R.  382  ;  Ham- 
Cases,  489.  Or  was  onlv  an  equitable  ilton  v.  Marsden,  6  Binn.  45 ;  Jackson  v. 
title.     Doe  v.  Edwards,  6  C.  &-  P.  208.  Ayres,  14  Johns.  224;  Jackson  v.  Norris, 

3  Taylor  v.  Needham,   2  Taunt.   278;  7  Cowen,  717. 

Doe  V.  Mills,  2  Ad.  &  El.  17  ;  Doe  v.  Lew-  «  Gregory  v.  Doidge,  3  Bing.  474;  11 

IS,  5  Ad.  &  El.  577  ;  Jackson  v.  Davis,  5  Moore,  394,  S.  C. 
Cowen,  123;  Jackson  r.  Harsen,  7  Cowen 


288  LAW   OF   EVIDENCE.  [PART  IV. 

pired;^  or  that  he  has  sold  his  interest  in  the  premises  ;  ^  or  that 
it  is  alienated  from  him  by  judgment  and  operation  of  law.^ 

§  306.  One  of  the  ordinary  methods  of  establishing  a  privity  in 
estate  is  by  proof  of  the  payment  of  rent ;  which  is  always  'prima, 
facie  evidence  of  the  title  of  the  landlord,  and  is  conclusive  against 
the  party  paying,  and  all  others  claiming  under  and  in  privity  with 
him.*  And  the  payment  of  rent,  after  an  occupancy  of  many  years, 
is  sufficient  evidence,  if  unexplained,  to  show  that  the  occupancy 
began  by  permission  of  the  party  to  whom  it  was  paid.^ 

§  307.  Where  both  parties  claim  under  the  same  third  person, 
it  is  prima  facie  sufficient  to  prove  the  derivation  of  title  from  him, 
without  proving  his  title.  So,  if  either  has  held  under  such  third 
person,  as  his  tenant,  and  is  thereby  estopped  to  deny  his  title.^ 
But  the  defendant,  if  not  otherwise  estopped,  may  still  set  up  a 
title  paramount  to  the  common  source,  and  derive  to  himself ;  or 
a  title  under  an  incumbrance  created  by  the  common  grantor, 
prior  to  the  title  of  the  plaintiff.  "^ 

§  308.  The  identity  of  the  lands,  and  the  possession  of  them  by 
the  defendant,  may  be  proved  by  the  payment  of  rent,  or  by  the 
defendant's  admission  of  his  tenancy,  or  by  any  other  competent 
evidence  of  the  fact ;  it  being  merely  a  matter  of  fact,  provable, 
like  other  facts,  by  parol  evidence.^ 

§  309.  The  party  claiming  as  lineal  heir  must  prove  that  the  an- 
cestor from  whom  he  derives  title  was  the  person  last  seised  of  the 
premises  as  his  inheritance,  and  that  he  is  the  heir  of  such  ances- 
tor.^   This  seisin  may,  in  the  first  instance,  be  proved  by  showing 

1  Neave  v.  Moss,  1  Bing.  360 ;  8  Moore,  pose  of  proving  title  may  show  even  by 
389,  S.  C. ;  England  v.  Slade,  4  T.  R.  presumptive  evidence  an  outstanding  title 
682  ;  Doe  v.  Whitroe,  1  Dowl.  &  R.  1  ;  in  another,  even  though  defendant  be  in  no 
Brook  V.  Briggs,  2  Bing.  N.  C.  572.  way  connected  with  such  outstanding  title. 

2  Doe  V.  Watson,  2  Stark.  R.  230.  In   such  actions,  circumstances  in  them- 

3  Jackson  v.  Davis,  5  Cowen,  123,  135  ;  selves  slight  and  trivial,  if  accompanied  by 
Camp  r.  Camp,  5  Conn.  291.  long-continued   possession,   should  be   al- 

*  Doe  V.  Pegge,  1   T.  R.  758,  759,  n. ;  lowed  to  go  to  the  jury  as  evidence  for  the 

Doe   V.    Clarke,   Peake,    Add.    Cas.  239 ;  defendant  to  prove  the  presumed  existence 

Hall  V.  Butler,  10  Ad.  &  El.  £04;  2  P.  &  and  loss  of  deeds  and  other  instruments. 

D.  374,  S.  C. ;  Jew  v.  Wood,  1  Craig.  &  Townsend  v.  Downer,  32  Vt.  183.] 

Phil.  185;  5  Jur.  954.  »  Adams  on  Eject,  p.  248,  by  Tilling- 

6  Doe  V.  Wilkinson,  3  B.  &  C.  413.  hast;  Jackson  v.  Vosburg,  7  Johns.  186. 

6  Adams  on  Eject,  p.  248,  by  Tilling-  By  the  modern  rules  of  practice  in  Eng- 
hast.  But,  in  the  former  case,  a  mere  land,  the  possession  by  the  defendant  is 
possessory  title,  which  would  be  good  admitted  in  the  consent-rule.  4  B.  &  Aid. 
against  a  stranger,   and  may  have  been  196 ;  2  B.  &  B.  470. 

gained  by  a  tortious  entry,  is  not  always  ^  Adams  on  Eject,  p.  253,  by  Tilling- 

sufEcicnt.     Sparhawk  v.  Bullard,  1  Met.  hast;  Jackson  on  Real  Actions,  p.  157; 

95;  Oakes  y.  Marcy,  10  Pick.  195.  Co.   Lit.    11  6;    Jenkins   v.   Prichard,  2 

7  Wolfe  V.  Dowell,   13  S.    &   M.    103.  Wils.  45. 
[*A  defendant  in  ejectment  for  the  pur- 


PART  IV.]  EJECTMENT.  289 

that  the  ancestor  was  either  in  actual  possession  of  the  premises, 
at  the  time  of  his  death,  and  within  the  period  of  the  statute  of 
limitations,  or  in  the  receipt  of  rent  from  the  terre-tenant ;  posses- 
sion being  prima  facie  evidence  of  a  seisin  in  fee.^  If  he  claims  as 
collateral  heir,  he  must  show  the  descent  of  himself,  and  the  person 
last  seised,  from  some  common  ancestor,  together  with  the  extinc- 
tion of  all  those  lines  of  descent  which  would  claim  before  him. 
This  is  done  by  proving  tne  marriages,  births,  and  deaths  necessary 
to  complete  his  title,  and  the  identity  of  the  persons.^ 

§  310.  Whej  e  the  plaintiff  claims  as  devisee  of  a  freehold,  he 
must  prove  the  seisin  and  death  of  the  devisor,  and  the  due 
execution  of  the  will ;  unless  it  is  thirty  years  old,  in  which  case 
it  may  be  read  without  further  proof ;  and  the  age  of  the  will 
is  to  be  reckoned  from  the  day  of  its  date,  and  not  from  the  death 
of  the  testator.^ 

§  311.  The  seisin  of  the  ancestor  or  devisor*  may  be  proved  by 
his  receipt  of  rent,  or  by  his  actual  possession  of  the  premises ; 
either  of  which  is  prima  facie  evidence  of  title  in  fee ;  ^  or  by 
proof  of  an  entri/  into  one  of  several  parcels  of  the  land,  if  they 
were  all  in  the  same  county,  and  there  was  no  adverse  possession 
at  the  time,  for  this  gives  a  seisin  of  them  all.^  If  there  was  an 
adverse  possession,  and  the  owner's  right  of  entry  was  not 
barred,  his  entry,  in  order  to  revest  the  seisin  in  himself,  should 
have  been  an  open  and  notorious  entry  into  that  particular  parcel ; 
and  in  every  case  an  entry,  to  revest  an  estate,  must  be  made  with 
that  intention,  sufficiently  indicated  either  by  the  act  or  by  words 
accompanying  it.^ 

§  312.  The  entrT/,  to  gain  a  seisin,  needs  not  be  made  by  the 
very  p>erso7i  entitled ;  but  may  be  made  by  another  in  his  behalf, 
even  if  it  be  by  a  stranger,  without  any  precedent  command,  or 
express  subsequent  agreement.     By  the  common  law,  the  entry 

1  Adams  on  Eject,  p.  254,  by  Tilling-  [*  Where  one  of  the  links  in  the  chain,  of 
hast;  Bull.  N.  P.  102,  103.  title  is  a  will,  its   admission   to   probate 

2  Ibid.  ;  2  Bl.  Comm.  208,  209  ;  Roe  v.  must  be  alleged.  Castro  v.  Richardson, 
Lord,  3   W.  Bl.  1099.     For  the  proof  of  18  Cal.  478.] 

pedigree,  see  Vol.  1,  §§  103-105, 134  ;  and  *  See  infra,  §  555. 

in/ra,  tit.  Heir.     See,  further,  Richards  v.  ^Bull.  N.  P.   103;   Jayne  w.  Price,    5 

Richards,  15  East,  294,  note.  Taunt.  326;  1  Marsh.  68,  S.  C. ;  2  Phil. 

8  Adams  on  Eject  p.  259  ;  Ante,  Vol.  1,  Evid.  282. 

§  570,  n.  ;  Doe  v.  Wolley,  3  B.  &  C.  22  ;  ^  Co.  Lit.  1 5  a,  6, 252  h  ;  1  Cruise,  Dig. 

McKenire  w.  Eraser,  9  Ves.  5;  Jackson  v.  tit.  1,  §§  24,  25  (Greenleafs  cd.)  [2d  ed. 

Laroway,  3  Johns.  Cas.  283,  286  ;  Jackson  1856]. 

w.  Chris"tman,  4  Wend,  277,  282.     For  the  "^  Co.  Lit.  245  b;  Robison  v.    Swett    3 

proof   of    Wills,    see    infra,    tit.    Will.  Greenl.  316 ;  5«/>ra,  §  23. 

VOL.  II.  19 


290  LAW  OF  EVIDENCE.  [PART  IV. 

of  One  joint-tenant,  tenant  in  common,  or  coparcener,  is  deemed 
the  entry  of  all ;  an'd  the  entry  of  a  guardian  tenant  for  years, 
tenant  by  elegit,  or  younger  brother  or  sister,  inures  to  the  ben- 
efit of  the  ward,  lessor,  or  other  person  entitled.^  So,  the 
possession  of  the  mother  becomes  the  seisin  of  her  posthumous 
son.2  And  it  seems  that  the  heir  may  acquire  an  actual  seisin, 
without  any  entry  by  himself,  by  making  a  lease  for  years  or 
at  will,  if  his  possession  in  law  is  unrebutted  by  the  actual  seisin 
of  any  other  person.^ 

§  313.  There  can  be  no  mesne  seisin  of  a  remainder  or  reversion 
expectant  on  an  estate  of  freehold^  while  such  remainder  or  rever- 
sion continues  in  a  regular  course  of  descent ;  for  if  it  be  granted 
over,  it  vests  immediately  in  the  grantee,  making  him  the  new 
stock  of  descent  for  any  subsequent  claimant ;  the  exercise  of 
such  ownership  being  equivalent  to  the  actual  seisin  of  an  estate, 
which  is  capable  of  being  reduced  to  possession  by  entry.  He, 
therefore,  who  claims  an  estate  in  remainder  or  reversion  by  a 
descent  must  make  himself  heir,  either  to  him  in  whom  such 
estate  first  vested  by  purchase,  or  to  the  person  to  whom  it  was 
last  granted  by  the  owner.* 

§  314.  Where  the  plaintiff  claims  as  legatee  of  a  term  of  years, 
lie  must  show  the  probate  of  the  will,  and  prove  the  assent  of 
the  executor  to  the  legacy,  without  which  he  cannot  take.  But 
allowing  the  legatee  to  receive  the  rents,  or  applying  them  to  his 
use,  or  any  other  slight  evidence  of  assent  on  the  part  of  the 
executor,  such  as,  on  the  part  of  a  tenant,  would  amount  to  an 
atonement,  will  be  sufficient ;  and  such  assent,  once  given,  is 
irrevocable.^  He  must  also  show  that  the  testator  had  a  chattel 
and  not  a  freehold  interest  in  the  premises ;  because  we  have 
already  seen  that  his  possession,  unexplained,  will  be  presumed  a 
seisin  in  fee.  Of  this  fact,  the  lease  itself  will  be  the  most  satis- 
factory evidence ;  but  it  may  be  proved  by  any  solemn  admission 
of  the  other  party,  as,  for  example,  by  his  answer  as  defendant 
to  a  bill  in  equity,  in  which  he  stated  that  "  he  believed  that  the 
lessor  was  possessed  of  the  leasehold  premises  in  the  bill  men- 
tioned." ^ 

1  Co.  Lit.  15  a,  245  b,  258  a  ;  2  Cruise's         ^  Watkins  on  Descentr,  pp.  67,  68,  (49) 
Dig.  tit.  18,  ch.  1,  §  63;  Id.  ch.  2,  §  14     (50). 

(Greenleaf's  ed.)  [2d  ed.  1856].  *  Id.   pp.  137,  138,  151,  (110)  (118). 

2  3  Cruise,  Dig.  tit.  29,  ch.  3,  §§55-57  ^  1  Roper  on  .Legacies,  250,  251 
(Greenleafs  ed.)  [2d  cd.  1856];   Good  title  ^  Dqq  y,  ste«l.  .^  C-Mnpb.  115. 
r.  Newman,  3  Wils.  516 


PART  IV.]  EJECTMENT.  291 

§  315.  If  the  plaintiff  claims  a  chattel  real  as  executor  or  admin- 
istrator, he  must  prove  the  grant  of  the  letters  of  administration, 
or  the  probate  of  the  will,  in  addition  to  the  evidence  of  the  testa- 
tor's or  intestate's  title.  And  where  no  formal  record  of  the 
grant  of  letters  of  administration  or  letters  testamentary  is  drawn 
up,  they  may  be  proved  by  the  book  of  Acts,  or  other  brief  official 
memorial  of  the  fact.^  If  the  plaintiff  claims  as  guardian,  he  must 
in  like  manner  prove,  not  only  the  title  of  the  ward,  and  his 
minority  at  the  time  of  the  demise  laid  in  the  declaration,  but  also 
the  due  execution  of  the  deed  or  will,  appointing  him  guardian, 
if  such  was  the  source  of  his  authority ;  or  the  due  issue  of  letters 
of  guardianship,  if  he  was  appointed  by  the  tribunal  having  juris- 
diction of  that  subject.^ 

§  316.  Where  the  plaintiff  claims  2iS  purchaser  under  a  sheriff  ^s 
sale,  made  by  virtue  of  an  execution  against  the  defejidant  in  eject- 
ment, it  is  sufficient  to  show  the  execution,  and  the  proceedings 
under  it,^  without  producing  a  copy  of  the  record  of  the  judgment 
itself ;  for  the  debtor  might  have  applied  to  have  the  execution  set 
aside,  if  it  had  been  issued  without  a  valid  judgment  to  support 
it ;  but  not  having  done  so,  it  will  be  presumed,  in  an  action  against 
him,  that  the  judgment  is  right.  But  where  the  action  of  eject- 
ment is  against  a  stranger,  no  such  presumption  is  made,  and  the 
plaintiff  will  be  required  to  prove  the  judgment,  as  well  as  the 
execution.*  In  some  of  the  United  States,  the  freehold  estate  of 
a  judgment  debtor  may  be  taken  on  execution,  in  the  nature  of  an 
extent,  and  set  off  to  the  creditor,  at  an  appraised  value ;  in  which 
case  an  actual  seisin  is  vested  in  the  creditor ;  by  virtue  of  which 
he  may  maintain  a  real  action,  even  against  the  debtor  himself.^ 

1  Bull.  N.  P.  246;  Elden  v.  Keddel,  8  555.     Lawrence  v.  Pond,  17  Mass.  433. 

East,  187  ;  Ante,  Vol.  I,  §  519  ;  Adams  on  Where  the  deed  of  one  acting  under  legal 

Eject,  p.  271,  by  Tillinghast.     A  court  of  authority  is  offered  in  proo^  not  of  title, 

common  law  takes  no  notice  of  a  will,  as  a  but  of  a  collateral  fact,  the  authority  needs 

title  to  personal  property,  until  it  has  been  not  be  proved.     Bolles   v.  Beach,  3  Am. 

proved  in  the  court  having  jurisdiction  of  Law  Journ.  122,  N.  S. 
the  probate  of  wills.     Stone  v.  Forsyth,  2         *  Doe  v.  Murless,  6  M.  &  S.  110;  HofF- 

Doug.  707.     An  executor  mav  lay  a  de-  man  v.  Pitt,  5  Esp.  R.  22,  23 ;  Cooper  v. 

mise  before  probate  of  the  will.     Roe  i'.  Galbraith,  3  Wash.   C.  C.  R.  546.     But 

Suraraersett,  2  W.  Bl.  694.  this  point  was  otherwise  decided,  and  the 

^  Adams  on  Eject,  by  Tillinghast,  p.  judgment  was  required  to  be  proved,  in  an 

275.  ejectment  against  the  debtor  himself,  in 

^  The  sherififa  return  is  itself  conclusive  Doe  v.  Smith,   1  Holt's  Cas.  589,  n. ;  2 

evidence  between  the  parties  and  those  in  Stark.  R.  199,  n. ;  Fenwick  w.  Floyd,  1  H. 

privity  with  them  of  all  the  facts  it  recites,  &  Gill,  172. 

which  relate  to  his  own  doings  by  virtue         °  Gore  v.  Brazier,  3  Mass.  523 ;  Blood 

of  the  precept.     Bott  v.  Bumell,  1 1  Mass.  v.  Wood,  1  Met.  528,  534. 
163;  Whitaker  v.  Sumner,  7  Pick.   551, 


292  LAW   OF   EVIDENCE.  [PART  IV. 

§  317.  If  a  joint  demise  is  laid  in  the  declaration,  evidence 
must  be  given  of  a  joint  interest  in  the  lessors.  But  if  several 
demises  are  laid,  the  declaration  will  be  supported  by  proof  of 
several  demises,  even  by  joint  tenants ;  for  a  several  demise  severs 
a  joint  tenancy.-^  So,  if  four  joint  tenants  jointly  demise,  such 
of  them  as  give  notice  to  quit  may  recover  their  several  shares, 
in  an  ejectment  on  their  several  demises.^  By  the  common  law, 
tenants  in  common  cannot  recover  upon  a  joint  demise  ;  but  must 
sue  separately,  each  for  his  share,  in  whatever  form  of  real  action 
the  remedy  is  sought.^  But  in  some  of  the  United  States  this  rule 
has  been  changed  by  statute,  and  in  others  it  has  been  broken  in 
upon  by  a  long  course  of  practice  in  the  courts,  permitting  tenants 
in  common  and  all  others  claiming  as  joint  tenants,  or  as  coparce- 
ners, to  join  or  sever  in  suits  for  the  recovery  of  their  lands.^ 
If  the  declaration  is  for  a  certain  quantity  of  land,  or  for  a  certain 
fractional  part,  and  the  plaintiff  proves  title  to  a  part  only  of 
the  land,  or  to  a  smaller  fraction,  the  declaration  is  supported  for 
the  quantity  or  fraction  proved,  and  he  may  accordingly  recover.^ 
But  whether,  if  any  entirety  is  demanded,  the  plaintiff  may  re- 
cover an  undivided  part,  is  not  uniformly  agreed ;  though  the 
weight  of  authority  is  clearly  in  favor  of  his  recovery.^ 

§  318.  If  the  action  is  by  a  joint  tenant,  parcener,  or  tenant  in 
common,  against  his  companion,  the  consent-rule,  if  it  is  in  the 
common  form,  will  be  sufficient  evidence  of  an  ouster;  but  if 
it  is  special,  to  confess  lease  and  entry  only,  the  ouster  must 
be  proved.'^  Possession  alone  will  not  be  sufficient  proof  of  an 
ouster  by  one  owner  against  his  companion  ;  for  where  both  have 
equal  right  to  the  possession,  each  will  be  presumed  to  hold  under 
his  lawful  title,  till  the  contrary  appears.  An  ouster  in  such  case, 
therefore,  must  be  proved  by  acts  of  an  adverse  character,  such  as 

1  Doe  V.  Head,  12  East,  57  ;  Doe  v.  ^  Denn  v.  Purvis,  1  Burr,  326 ;  Guy  v. 
Fenn,  3  Campb.  190;  Doe  v.  Lonsdale,  Rand,  Cro.  El.  12;  Santee  v.  Keister,  6 
12  East,  39.  Binn.  36. 

2  Doe  V.  Chaplin,  3  Taunt.  120.  ^  d^q  j,,  Wippel,  1  Esp.  R.  360    Roe  v. 
^  Co.  Lit.  197;  Hammond  on  Parties,     Lonsdale,  12  East,  39  ;  Dewey  v.  BiowQ, 

p.   251  ;  1    Chitty  on  PI.  14  (7th  edit.) ;  2  Pick.  387 ;  Somes  v.  Skinner,  3  Pick. 

Innis  V.  Crawford,  4  Bibb,  241  ;  Taylor  v.  52  ;    Holyoke  v.  Haskins,   9   Pick.    259  ; 

Taylor,  3  A.  K  Marsh.  18  ;  White  v.  Pick-  Gist  v.  Robinct,  3  Bibb,  2  ;  Ward  v.  Har- 

ering,  12  S.  &  R.  435.  rison.  Id.  304;  Larue  v.   Slack,  4  Bibb- 

*  Maine,  Rev.  St.  ch.  145,  §  12;  Massa-  358.     Contra,  Carroll  v.  Norwood,  1  H.  & 

chusetts,  Rev.  St.  ch.   101,  §  10;  Jackson  J.  100,  167  ;  Young  v.  Drew,  1  Taylor,  K 

V.  Bradt,  2  Caines,  169;  Jackson  v.  Sam-  119. 

pie,  1  John's  Cas.  231  ;  Jackson  v.  Sidney,        "^  Doe  v.  Cuff,  1  Campb   1 73  ;  Oakes  v 

12  Johns.  185;  Doe  i;.  Potts,  1  Hawks,  R.  Brydon,  3   Burr.   1895;  Doe  v.   Roe,   1 

469  Anstr.  86. 


PART  IV.]  EJECTMENT.  293 

claiming  the  whole  for  himself;  denying  the  title  of  his  com- 
panion ;  or  refusing  to  permit  him  to  enter ;  and  the  like.  A 
bare  perception  of  the  whole  profits  does  not,  of  itself,  amount  to 
an  ouster ;  yet  an  undisturbed  and  quiet  possession  for  a  long 
time  is  a  fact  from  which  an  ouster  may  be  found  by  the  jury.i 

§  319.  Where  the  action  is  brought  by  a  landlord  against  his 
tenant^  or  is  between  persons  in  privity  with  them,  the  claimant 
must  show  that  the  tenancy  is  determined ;  otherwise,  being  once 
recognized,  it  will  be  presumed  still  to  subsist.  It  may  be  deter- 
mined, either  by  efflux  of  time  ;  or  by  notice  ;  or  by  forfeiture  for 
breach  of  condition.^ 

§  320.  If  the  tenancy  is  determined  by  lapse  qftime,  this  may 
be  shown  by  producing  and  proving  the  counterpart  of  the  lease. 
And  if  it  depended  on  the  happening  of  a  particular  event,  the 
event  also  must  be  proved  to  have  happened.^  If  the  demise  was 
by  parol,  or  the  lease  is  lost,  it  may  be  proved  by  a  person  who 
was  present  at  the  demise  ;  or  by  evidence  of  the  payment  of 
rent;  or  by  admissions  of  the  defendant,  or  other  competent 
secondary  evidence.^ 

§  321.  Where  it  is  determined  by  notice  to  quit,  or  by  notice 
from  the  tenant  that  he  will  no  longer  occupy,  the  tenancy  must 
be  proved,  with  the  tenor  and  service  of  the  notice  given,  the 
authority  of  the  person  who  served  it,  if  served  by  an  agent,  and 
that  the  time  mentioned  in  the  notice  was  contemporaneous  with 
the. expiration  of  tlie  tenancy,  or  with  the  period  when  the  party 
was  at  liberty  so  to  terminate  it.  And  if  a  custom  is  relied  on, 
as  entitling  the  party  so  to  do,  this  also  must  be  shown .^  If  the 
tenant,  on  application  of  his  landlord  to  know  the  time  when  the 
lease  commenced,  states  it  erroneously,  and  a  notice  to  quit  is 
served  upon  him  according  to  such  statement,  the  tenant  is 
estopped  to  prove  a  different  day.^     He  is  also  concluded  by  the 

1  Doe  t).  Prosser,  Cowp.  217  ;  Fairclaim  law,  a  parol  notice  is  suflBcient.  Doe  v. 
V.  Shackleton,  5  Burr.  2604  ;  Brackett  v.  Crick,  5  Esp.  196;  Legg  v.  Benion,  Wil- 
Norcross,  1  Gieenl.  89;  Doe  v.  Bird,  11  les,  43.  If  the  party  has  disclaimed  or 
East,  49,  And  see  2  Cruise's  Dig.  tit.  20,  denied  the  tenancy,  no  notice  is  necessary. 
§  14,  note,  by  Greenleaf  [2d  ed.  1856].  Doe  v.  Grubb,  10  B.  &  C.  816;  Doe  v. 

2  Adams  on  Eject,  by  Tillinghast,  pp.  Pusquali,  Peake's  Cas.  196 ;  Bull.  N.  P. 
276,  277.  96.     And  a  new  notice,  or  receipt  of  rent, 

^  Id.  p.  278.  or  a  distress  for  rent,  subsequently  accrued, 

*  See  ante,  Vol.  1,  §  569,  as  to  laying  a  is  evidence  of  a  waiver  of  a  prior  notice, 
foundation  for  the  admission  of  secondary  Doe  v.  Palmer,  16  East,  53;  Zouch  v, 
evidence  of  a  written  instrument,  by  notice  Willingale,  1  H.  Bl.  311;  Doe  s.  Batten, 
to  the  adverse  party  to  produce  it.  Cowp.  243. 

*  Adams    on    Eject,     by    Tillinghast,         ^  Doe  v.  Lambly,  2  Esp.  635. 
pp.  1-20,  131,  278,  279,      By  the  common 


'  294  LAW  OF  EVIDENCE.  [PART  IV. 

time  stated  in  the  notice,  if  at  the  time  of  service  he  assents  to 
its  terms.i  But  if  the  tenant,  being  personally  served  with  notice, 
made  no  objection  to  it  at  the  time,  this  is  prima  facie  evidence, 
to  the  jury,  that  the  term  commenced  at  the  time  mentioned  in 
the  notice.2  If,  however,  the  notice  was  not  personally  served,  or 
was  not  read  by  the  tenant  nor  explained  to  him,  no  such  pre- 
sumption  arises  from  his  silence.^ 

§  322.  The  service  of  the  notice  may  be  proved  by  the  person 
who  delivered  it;  but  if  there  was  a  subscribing  witness,  he 
also  must  be  called,  as  in  other  cases  of  documentary  evidence. 
The  contents  of  the  notice  may  be  shown  by  a  copy  ;  or,  if  no 
copy  was  taken,  it  may  be  proved  by  a  witness ;  and  in  either 
case,  no  previous  notice  to  produce  the  original  will  be  re- 
quired.* 

§  323.  The /orm  of  notice  must  be  explicit  and  positive,  truly 
giving  to  the  party,  in  itself,  all  that  is  material  for  him  to  know 
upon  the  subject.  A  misdescription  of  the  premises,  or  a  mis- 
statement of  dates,  which  cannot  mislead,  will  not  vitiate  the 
notice;  5  nor  need  it  be  directed  to  the  person.^  Even  if  directed 
by  a  wrong  name,  yet  if  he  keeps  it  without  objection,  the  error 
is  waived.'!^  A  notice  as  to  part  only  of  the  demised  premises  is 
bad  ;  ^  but  a  notice  by  one  of  several  joint  tenants  will  enable  him 
to  recover  his  share,^  The  notice,  however,  must  be  such  as  the 
tenant  may  act  upon  at  the  time  when  it  is  given.  Where,  there- 
fore, two  only  of  three  executors  gave  notice,  "  acting  on  the  part 
and  behalf  of  themselves  and  the  said  J.  H.,"  the  other  executor, 
this  was  held  insufficient,  though  it  was  afterwards  recognized 
by  the  third,  the  lease  requiring  a  notice  in  writing,  under 
the  hands  of  the  respective  parties;  for  at  the  time  when  it 
was  served,  the  tenant  could  not  know  that  it  would  be  rati 
fied  and  adopted  by  the  other.^"  But  where  the  notice  was 
signed  by  an  agent  professing  to  act  as  the  agent  of  all  the 
lessors,  it  was  held  sufficient  to  enable  the  defendant  to  act  upon 

1  Adams  on  Eject,  p.  280.  2  M.  &  S.  62  ;  Doe  v.  Soraerton,  7  Ad.  & 

«  Doe  V.  Forster,  13  East,  405  ;  Doe  v.  El.  58,  N.  S. 

Woombwell,  2  Campb.  559;    Thomas  v.  ^  Doe  ex  dem.  Cox,  4  Esp.  185;  Doe 

Thomas,   2    Campb.    647  ;    Oakapple    v.  v.  Kiohtley,  7  T.  R.  6.3. 

Copous,  4  T.  R.  ,361.  e  Doe  v.  Wrij;htman,  4  Esp.  .5. 

»  Doe  V.  Harris,  1  T.  R.  161  ;  Doe  v.  t  Doc».  Spillcr,  6  Esp.  70. 

Calvert,  2  Campb.  378.  8  poe  v.  Archer,  14  East,  <i45. 

*  Ante,  Vol.  1,  §§  561,  569;  Adams  on  9  Doe  v.  Chaplin,  3  Taupt.  120. 

Eject,  by  Tillinghast,  p.  279  ;  Jory  v.  Or-  i''  Right  v.  Cuthell,  5  East  491,  499,  pel 

chard,  2  B.  &  P.  39,  41  ;  Doe  v  Dumford,  Lawrence,  J. 


PART  IV.]  EJECTMENT.  295 

with  certainty,  though  in  fact  the  letter  of  attorney  was  not 
signed  by  all  the  lessors  until  a  subsequent  day.^ 

§  324.  Service  of  notice  at  the  dwelling-house  of  the  party  is 
sufficient,  whether  upon  the  party  in  person,  or  his  wife,  or  ser- 
vant.^ And  if  there  are  two  joint  lessees,  service  on  one  of  them 
is  prima  facie  evidence  of  a  service  on  both.^  If  the  lessee  has 
assigned  his  interest  to  one  between  whom  and  the  landlord 
there  is  no  privity,  the  notice  should  be  served  on  the  original 
lessee.* 

§  325.  Notice  to  quit  is  not  necessary,  where  the  relation  of  land- 
lord and  tenant  is  at  an  end,  as  in  the  case  of  a  tenant  holding 
over  by  sufferance ;  ^  nor  where  the  person  in  possession  is  but  a 
servant  or  bailiff  to  the  owner ;  ^  nor  where  he  has  either  never 
admitted  the  relation  of  landlord  and  tenant,  as,  if  he  claims  in  fee, 
or  adversely  to  the  plaintiff ;  '^  or  has  subsequently  disclaimed  and 
repudiated  it,  as,  for  example,  by  attorning  to  a  stranger,  or  the 
like.^  But  such  notice  is  deemed  necessary  only  where  the  relar 
tion  of  landlord  and  tenant  does  exist,  whether  it  be  created  by  an 
express  demise,  or  is  incidentally  admitted,  either  by  the  acceptance 
of  rent,  or  by  entering  under  an  agreement  to  purchase,  or  the 
like.^  And  notice,  if  given,  is  waived,  on  the  part  of  the  land- 
lord, by  a  subsequent  new  notice  to  quit ;  or,  by  the  receipt  of 
rent  before  the  bringing  of  an  ejectment ;  or,  by  a  distress  for  rent 
accruing  subsequently  to  the  expiration  of  the  notice  to  quit ; 
or,  by  an  action  for  subsequent  use  and  occupation ;  or,  by  any 
other  act  on  the  part  of  the  lessor,  after  knowledge  by  him  of 
the  tenant's  default,  recognizing  the  tenancy  as  still  subsist- 
ing.i*^ 

1  Goodtitle  v.  Woodward,  3  B.  &  Aid.  557,  560 ;  Jackson  v.  Wlieeler,  6  Johns. 
689.  272  ;  Doe  v.  Gvubb,  10  B.  &  C.  816  ;  Doe 

2  Widger  v.  Browning,  2  C.  &  P.  523  ;     r.  Whittick,  Gow,  195. 

Doe  V.  Dunbar,  1  M.  &  Malk.  10  ;  Jones  ^  Jackson    v.    Wilsey,   9    Johns.    267  ; 

V.  Marsh,  4  T.  R.  464;  Doe  v.  Lucas,  5  Jackson  v.  Rowen,  Id.  330  ;  Ferris  v.  Ful- 

Esp.  153.  ler,  4  Johns.   213;   Jackson   v.   Deyo,  3 

3  Doe   V.    Crick,  4   Esp.    196 ;  Doe   v.  Johns.  422. 

Watkins,  7  East,  553.  i'^  Doe  v.  Palmer,  1 6  East,  53  ;  Doe  v. 

*  Roe  V.  Wiggs,  2  New  R.  330 ;  Pleas-  Inglis,  3  Taunt.  54 ;  Arinsby  v.  Wood- 
ant  V.  Benson,  14  East,  234.  ward,  6  B.  &  C.  519  ;  Roc  v.  Harrison,  2 

^  Jackson  v.  Parkhurst,  5  Johns.  123  ;  T.   R.  425  ;    Goodright  v.  Davis,  Cowp. 

Thunder  v.   Belcher,   3   East,   449,  451  ;  803  ;  Doe  v.  Batten,  Cowp.  243  ;  Doe  v. 

Jackson  v.  McLcod,  12  Johns.  182.  Meaux,  1  C.  &  P.  346 ;  4  B.  &  C.  606,  S. 

^  Jackson  v.  Sample,  1  Johns.  Cas.  231.  C. ;  Doe  v.  Johnson,  1  Stark.  R.  411.   By 

'  Jackson  v.  Deyo,  3  Johns.  422  ;  Jack-  the  common  law,  the  receipt  of  the  rent 
6on  V.  Cuerden,  2  Johns.  Ch.  353  ;  Doe  w.  previously  due  is  a  waiver  of  the  forfeit- 
Williams,  Cowp.  622 ;  Doe  v.  Creed,  5  ure  occasioned  by  its  non-payment.  1 
Bing.  327.  Saund.  287,  note  (16),  by  Williams. 

8  Bull.  N.  P.  96  ;  Dee  v.  Frowd,  4  Bing. 


296  LAW   OF  EVIDENCE.  [I'ART  IV 

§  326.  Where  the  ejectment  is  founded  upon  the  forfeiture  of  a 
lease  for  non-payment  of  rent^  and  the  case  is  not  governed  by  any 
statute,  but  stands  at  common  law,  the  plaintiff  must  prove  that 
he  demanded  the  rent,  and  that  the  precise  sum  due,  and  neither 
more  nor  less,  was  demanded  ;  that  the  demand  was  precisely  up- 
on the  day  when  the  rent  became  due  and  payable  ;  that  it  was 
made  at  a  convenient  time  before  sunset  on  that  day  ;  that  it  was 
made  upon  the  land,  and  at  the  most  notorious  place  upon  it,  and  if 
there  be  a  dwelling-house  on  it,  then  at  the  front  or  principal  door, 
though  it  is  not  necessary  to  enter  the  house,  even  if  the  door  be 
open ;  and  that  a  demand  was  in  fact  made,  although  no  person 
was  there  to  pay  it.  But  if  any  other  place  was  appointed,  where 
the  rent  was  payable,  the  demand  must  be  proved  to  have  been 
made  there.  A  demand  made  after  or  before  the  last  day  of  pay- 
ment, or  not  upon  the  land,  or  at  the  place,  will  not  be  sufficient 
to  defeat  the  estate. ^ 

§  327.  If  the  lease  contained  an  express  limitation,  that  upon 
non-payment,  or  other  breach,  the  lease  should  become  absolutely 
void,  then  no  entr;^  by  the  landlord  need  be  made,  but  an  eject- 
ment lies  immediately,  upon  the  breach,  with  proof  of  demand  of 
rent  as  before  stated,  if  the  breach  was  by  non-payment.  But 
where  the  terms  of  the  lease  are,  that  upon  non-payment  or  other 
breach  it  shall  be  lawful  for  the  lessor  to  re-enter,  there,  by  the 
common  law,  the  plaintiff  must  show  an  entry,  made  in  reasonable 
time,  and  because  of  such  breach  ;  unless  the  entry  is  confessed  in 
the  consent-rule,  which  is  now  held  sufficient.  And  in  this  latter 
class  of  cases,  if  the  lessor,  after  notice  of  the  forfeiture  (which  is 
an  issuable  fact),  accepts  rent  subsequently  accruing,  or  distrains 
for  the  rent  already  due,  or  does  any  other  act  which  amounts  to  a 
recognition  of  the  relation  of  landlord  and  tenant  as  still  subsist- 
ing, or  to  a  dispensation  of  the  forfeiture,  the  lease,  which  before 
was  voidable,  is  thereby  affirmed  ;  and  this  will  constitute  a  good 
defence  to  the  action.^     If  the  tenant,  after  demand  of  the  rent, 

.  1  See  1  Saund.  287,  note  (16),  by  Wil-  2  i  Saund.  287,  note  (16),  by  Williams, 
liams,  and  cases  there  cited.  The  strictness  and  cases  there  cited;  l)o€  v.  Banks, 
of  the  common  law,  in  the  particulars  men-  4.  B  &  Aid.  401  ;  Fawcett  v.  Hall,  1  Al- 
tioned  in  the  text,  has  been  abated,  and  the  cock.  &  Napier,  R.  248  ;  Zouch  v.  Willin- 
subject  otherwise  regulated  by  statutes,  gale,  1  H.  Bl.  311.  But  the  rent  must 
both  in  England  and  several  of  the  United  have  been  received  as  between  landlord 
States ;  but  as  these  statutory  provisions  and  tenant,  and  not  upon  any  other  con- 
are  various  in  the  different  States,  render-  sideration.  Right  v.  Bawden,  3  East, 
ing  the  subject  purely  a  matter  of  local  260. 
law,  they  are  not  here  particularly  stated. 


PART  IV.]  EJECTMENT.  297 

but  before  the  expiration  of  the  last  day,  tenders  the  sum  due,  this 
also  will  save  the  forfeiture.^ 

§  328.  If  the  breach  consisted  in  assigning  or  underletting  with 
out  the  consent  of  the  lessor,  it  has  been  held  sufficient  for  the 
plaintiff  to  show  that  another  person  was  found  in  possession,  act- 
ing and  appearing  as  tenant,  this  h^mg  prima  facie  evidence  of  au 
underletting,  and  sufficient  to  throw  upon  the  defendant  the  bur- 
den of  proving  in  what  character  such  person  held  possession  of 
the  premises.  And  in  such  case,  the  declarations  of  the  occupant 
are  admissible  against  the  defendant,  to  show  the  character  of  the 
occupancy.^ 

§  329.  Where  the  action  is  between  a  mortgagee  and  the  mortga- 
gor, the  mortgagee's  case  is  ordinarily  made  out  by  the  production 
and  proof  of  the  mortgage  deed,  which  the  defendant  is  estopped  to 
deny.  If  the  action  is  against  a  tenant  of  the  mortgagor,  the  deter- 
mination of  the  tenancy  must  be  proved ;  unless  it  commenced 
subsequent  to  the  mortgage,  and  has  not  been  acknowledged  by 
the  mortgagee  ;  in  which  case  no  notice  to  quit  needs  be  shown.^ 
And  where  the  mortgage  deed  contains  a  proviso  that  the  mort- 
gagor may  remain  in  possession  until  the  condition  is  broken,  it 
will  be  necessary  for  the  plaintiff  to  prove  a  breach.*  Whether,  in 
general,  a  mortgagor  is  entitled  to  notice  to  quit  seems  not  to  be 
perfectly  clear  by  the  authorities.  In  England,  he  is  held  not  en- 
titled to  such  notice  ;  ^  but  in  some  of  the  United  States  it  has  been 
held  otherwise.^ 

§  330.  Payment  of  the  mortgage  debt  is  a  good  defence  to  an 
action  at  law,  brought  by  the  mortgagee,  against  the  mortgagor, 
to  obtain  possession  of  the  mortgaged  premises  ;  but  if  the  mort- 
gagee is  already  in  possession,  the  remedy  of  the  mortgagor,  where 
no  other  is  provided  by  statute,  is  by  bill  in  equity.'''  And  where 
usury  renders  the  security  void,  this  may  also  be  shown  in  de- 

1  Co.  Lit.  202  a.  6  Keech  v.  Hall,  1  Douo;.  21  ;  Thunder 

2  Doe   V.  Kickarby,  5  Esp.  4,  per  Ld.  v.    Belcher,    3    East,    449 ;    Patridge    w. 
Alvanley ;  Ante,  Vol.  1,  §§  108,  109.  Beere,  5  B.  &  Aid.  604. 

3  Thunder  v.  Belcher,  3  East,  449;  ^  Jackson  v.  Laughead,  2  Johns.  75; 
Keech  v.  Hall,  1  Doug.  21;   Jackson  v.  Jackson  v.  Green,  4  Johns.  186. 

Chase,  2  Johns.  84  ;  Jackson  v.  Fuller,  4         "^  Gray  v.  Jenks,  3  Mason,  R.  520  ;  Gray 

Johns.  215  ;  Birch  v.  Wright,  1  T.  R.378,  v.  Wass,  1  Greenl.  260;  Vose  v.  Handy,  2 

388.     But  if  the  mortgagee  or  the  assignee  Greenl.   322;   Perkins  v.   Pitts,  11  IMass. 

of  the  mortgage  has  acknowledged  the  ten-  125;  Erskine  ?;.  Townscnd,  2  Mass.  493; 

ancy  by   the  receipt  of  rent,  a  notice  to  Wade  v.  Howard,  1 1  Pick.  289 ;  Howard 

qtiit  is  necessary   to   be  proved.      Ibid. ;  v.  Howard,  3  Met.  548,  557  ;  Hitchcock  v. 

Clayton  v.  Blackey,  8  T.  R.  3.     See  also  Harrington,  6  Johns.  290,  294 ;   Jackson 

Jackson  v.  Stackhouse,  1  Cowen,  122.  v.  Stackhouse,  1  Coweu,  R.  122;  Deeringr 

*  Hall  V.  Doe,  5  B.  &  Aid.  687.  v.  Sawtel,  4  Greenl.  191. 


298  LAW   OF  EVIDENCE.  [PART  IV. 

fence,  against  an  action  brought  by  the  mortgagee  upon  the  mort 
gage.i 

§  331.  As  the  claimant  in  ejectment,  or  other  real  action,  can 
recover  only  upon  the  strength  of  his  own  title,  and  not  upon 
the  weakness  of  that  of  the  tenant,  the  defence  will  generally  con- 
sist merely  in  rebutting  the  proofs  adduced  by  the  plaintiff.^  For 
possession  is  always jorma /ac?ie  evidence  of  title;  and  the  party 
cannot  be  deprived  of  his  possession  by  any  person  but  the  rightful 
owner,  who  has  the  jus  possessionis.^  The  defendant,  therefore, 
needs  not  show  any  title  in  himself,  until  the  plaintiff  has  shown 
some  right  to  disturb  his  possession.  Thus,  if  the  plaintiff  claims 
as  heir,  and  proves  his  heirship,  the  defendant  may  show  a  devise 
by  the  ancestor  to  a  stranger,  or  that,  by  the  local  law,  some  other 
person  is  entitled  as  heir  ;  or  that  the  claimant  is  illegitimate,  or 
the  like.  So,  if  he  claims  as  devisee,  the  defendant  may  prove  that 
the  will  was  obtained  by  fraud,  or  may  impeach  its  validity  on  any 
other  grounds,  not  precluded  by  the  previous  probate  of  the  will.* 
And  he  may  also  defeat  the  plaintiff's  claim,  by  showing  that  the 
real  title  is  in  another,  without  claiming  under  it,  or  deducing  it 
to  himself,  either  by  legal  conveyance,  or  operation  of  law.^  But 
he  cannot  set  up  a  merely  equitable  title  or  lien  to  defeat  a  legal 
title,  under  which  the  plaintiff  claims.^ 

§  332.    As  the  damages  given  in  an  action  of  ejectment  are  now 

^  Holton   V.  Button,  4  Conn.  R.  436;  any  time  within  forty  years.     People  v. 

Ueerinr,'  v.  Sawtel,  4  Greenl.  191  ;  Chand-  Trinity  Church,  22  N.  Y.  44.] 

ler  2?.  Morton,  5  Greenl.  174;  Richardson  *  AdamsonEject.  p.  286,by  Tillinghast. 

V.  Field,  6  Greenl.  3.5.  ^  jd.  99,  30,  31  ;  Hunter  v.  Cochran,  3 

2  See  infra,  §§  555  -  558.  f*  Where  the  Barr,  105.  But  if  he  entered  under  a  con- 
only  question  in  an  action  of  ejectment  tract  to  purchase  from  the  plaintiff,  he  is 
was  whether  there  was  an  outstanding  title  estopped  to  deny  the  plaintiff's  title, 
superior  to  that  of  the  plaintiff,  it  was  held  Norris  v.  Smith,  7  Cowen,  R.  717;  1 
not  to  be  material  for  the  jury  to  consider  Cruise's  Dig.  tit.  12,  ch.  2,  §  36,  note 
whether  the  defendant's  title  connected  (Grecnleaf 's  ed.)  [2d  ed.  1856] ;  2  Wheat, 
with  it  or  not.     Clegg  v.  Fields,  7  Jones,  224,  note  (a). 

Law,  37.]  ^  Adams   on   Eject,    p.   32  ;   1   Cruise's 

3  Adams  on  Eject,  pp.  285,  286,  by  Til-  Dig.  tibi  supra  ;  Id.  §  38,  note  ;  Roe  v. 
linghast ;  Hall  *;.  Gittings,  2  Har.  &  Johns.  Reed,  8  T.  R.  118,  123  ;  Jackson  v.  Sisson, 
122;  Lane  v.  Reynard,  2  S.  &  R.  65 ;  2  Johns.  Cas.  321;  Jackson  v.  Harring- 
supra,  §§  303,  304.  As  to  the  presumption  ton,  9  Cowen,  R.  88  ;  Jackson  v.  Park- 
of  a  conveyance  from  the  trustee  to  the  hurst,  4  Wend.  369  ;  Sinclair  v.  Jackson, 
cestui  c/ue  trust,  see  \  Cruise's  Dig.  tit.  12,  8  Cowen,  R.  543;  Heath  v.  Knapp,  4 
ch.  2,  §  39,  note  (Greenleaf 's  ed.)  [2d  ed.  Barr,  230.  But  in  Pennsylvania,  it  seema 
1856|.  [*  A  person  in  possession  of  land  that  an  ejectment  is  regarded  as  an  equita- 
is  presumed  to  have  acquired  the  title  ble  remedy,  and  judgment  is  rendered  at 
which  the  people  in  their  capacity  of  sov-  law,  upon  any  principles  which  would  re- 
ereign  once  held.  But  when  the  people  quire  a  decree  in  Chancery.  Peebles  v. 
are  plaintiffs,  it  seems  that  this  presump-  Reading,  8  S.  &  R.  484  ;  Delancy  v.  Mc- 
tion  is  shifted  to  the  other  side,  on  show-  Kean,  1  Wash.  C.  C.  R.  354 ;  Thomas  v. 
ing  that  the  possession  has  been  vacant  at  Wright,  9  S.  &  R.  87,  93. 


PARI  IV.}  EJECTMENT.  299 

merely  nominal,  the  title  alone  being  the  subject  of  controversy, 
the  plaintiff  is  permitted  to  recover  his  real  damages  in  an  ac- 
tion of  TRESPASS  FOR  MESNE  PROFITS  ;  in  whicli  he  complains  of  his 
having  been  ejected  from  the  possession  of  the  premises  by  the  de- 
fendant, who  held  him  out,  and  took  the  rents  and  profits,  during 
the  period  alleged  in  the  declaration.^  And  as  this  remedy  is  one 
of  the  incidents  and  consequences  of  an  ejectment,  it  is  usually  con- 
sidered under  that  head.  We  have  heretofore  seen,^  that  the  law 
considers  the  lessor  of  the  plaintiff,  and  the  actual  tenant,  as  the 
real  parties  in  an  action  of  ejectment ;  and  therefore  the  action  for 
mesne  profits  may  be  brought  by  the  lessor  of  the  plaintiff,  as  well 
as  by  the  nominal  plaintiff  himself.  The  evidence  on  the  part  of 
the  plaintiff  consists  of  proof  of  his  possessory  title ;  the  defend- 
ant's wrongful  entry  ;  the  time  of  his  occupation  ;  the  value  of  the 
mesne  profits ;  and  any  other  damages  and  expenses  recoverable 
in  this  action. 

§  333.  Where  this  action  is  between  the  parties  to  the  prior  ac- 
tion of  ejectment,  and  the  plaintiff  proceeds  only  for  profits  accru- 
ing subsequent  to  the  alleged  date  of  the  demise,  the  record  of  the 
judgment  in  that  case  will  be  conclusive  evidence  of  the  plaintiff's 
title  and  of  the  defendant's  entr^/and  lyossession  from  the  day  of  the 
demise  laid  in  the  declaration.^  If  the  plaintiff  would  claim  for 
profits  antecedent  to  that  time,  he  must  prove  his  title  as  in  other 
cases,  and  the  defendant  will  not  be  estopped  to  gainsay  it.*  So,  if 
the  suit  is  against  a  precedent  occupant,  the  judgment  in  ejectment 
is  no  proof  of  the  plaintiff's  title.^  And  if  the  suit  is  against  the 
landlord  of  the  premises,  a  judgment  in  ejectment  against  the  casual 
ejector  is  not  evidence  of  the  plaintiffs  title,  unless  the  landlord  has 
notice  of  the  ejectment.^ 

§  334.   The  plaintiff  must  also  prove  his  possession  of  the  prem 

1  There  is  some  diversity  in  the  different  ^  Ante,  Vol.  1,  §  535. 

American    States,   as  to   the  remedy   for  ^  Adams   on   Eject.   334  ;    Dodwell   v 

mesne  profits,  which  it  is  not  within  the  Gibbs,  2  C.  &  P.  615;  Dewey  v.  Osborn: 

plan  of  this  treatise  to  consider.     See  Gill  4  Cowen,  E.  329,  335  ;  Van  Allen  v.  Rog- 

V.  Cole,  1  Har.  &  J.  403;  Lee  v.  Cooke,  ers,  1  Johns.  Cas.  281  ;  Benson  v.  Mats- 

Gilmer,   R.   331;    Colemftn   v.  Parish,  1  dorf,  2  Johns.  369;  Chiracs.  Reinicker, 

McCord,  264  ;  Sumter  v.  Lehie,  1  Const.  11  Wheat.  280;  Lion  v.  Burton,  5  Cowen, 

R.  102;    Cox  V.  Callender,  9  Mass.  533.  E.  408. 

See  infra,  §§  548  -  552.    Where  provision  is  *  Bull.   N.   P.   87  ;    Ashlin   v.   Parkin, 

made  by  statute  for  an  allowance  to  the  2    Burr.    668  ;    Jackson    v.   Randall,    11 

tenant  in  a  real  action  for  the  value  of  his  Johns.  405 ;  West  v.  Hughes,  1  Har.  &  J. 

lasting  improvements,  of  which  he  avails  574. 

himself  at  the  trial,  the  value  of  the  mesne  ^  Bull.  N.  P.  87. 

profits  is  generally  taken  into  the  estimate  ^  Hunter  v.  Britts,  3  Campb.  455. 
by  special  provisions  for  that  pui-pose. 


300  LAW   OF  EVIDENCE.  [PART  IV. 

ises.  If  the  judgment  in  ejectment  was  rendered  after  verdict 
against  the  tenant  in  possession,  the  consent-rule,  if  it  was  entered 
into,  will  be  sufficient  proof  of  possession  by  the  plaintiff.  But  if 
no  consent-rule  was  entered  into,  the  judgment  being  rendered 
against  the  casual  ejector  by  default,  the  plaintift's  possession  must 
be  proved,  either  by  the  writ  of  possessi!)n  and  the  sheriffs  return 
thereon,  or  by  evidence  that  the  plaintiff  has  been  admitted  to  the 
possession  by  the  defendant.^  The  entry  of  the  plaintiff,  it  seems, 
will  relate  back  to  the  time  when  his  title  accrued,  so  as  to  entitle 
him  to  recover  the  mesne  profits  from  that  time.^ 

§  335.  It  will  also  be  incumbent  on  the  plaintiff  to  prove  the  du- 
ration of  the  occupancy  by  the  defendant,  or  by  his  tenant,  if  he  be 
the  landlord  ;  and  in  the  latter  case,  if  the  judgment  in  ejectment 
was  against  the  casual  ejector,  by  default,  it  must  be  shown  that  the 
defendant  was  landlord  when  the  ejectment  was  brought,  which  may 
be  done  by  proof  of  his  receipt  of  rent  accruing  subsequent  to  the 
time  of  the  demise.  The  plaintiff  must  also  prove  that  the  landlord 
had  due  notice  of  the  service  of  the  declaration  in  ejectment  upon 
the  tenant  in  possession  ;  but  if  he  has  subsequently  promised  to 
pay  rent  and  the  costs  of  the  ejectment,  this  will  suffice.^ 

§  336.  The  plaintiff  in  this  action  may  recover  the  costs  incurred 
by  him  in  a  Court  of  Error,  in  reversing  a  judgment  in  ejectment 
obtained  by  the  defendant,  as  part  of  his  damages,  sustained  by  his 
having  been  wrongfully  kept  out  of  possession  by  the  act  of  the  de- 
fendant ;  and  the  jury  will  be  instructed  to  consider  the  costs  be- 
tween attorney  and  client  as  the  measure  of  this  item  of  damages.* 
He  also  may  recover  in  this  form  the  costs  of  the  ejectment ;  ^  and, 
also,  under  proper  averments,  the  amount  of  any  injury  done  to 
the  premises,  in  consequence  of  the  misconduct  of  the  defendant 
or  his  servants,  and  any  extra  damages  which  the  circumstanc*es  of 
the  case  may  demand.^ 

1  Bull.  N.  P.  87.  It  would  seem  that  a  *  Nowell  v.  Roake,  7  B.  &  C.  404.  And 
judgment  in  ejectment  recovered  by  the  see  Doe  v.  Huddart,  5  Tyrwh.  846 ;  2  C. 
plaintitr  against  the  defendant  estops  the  M.  &  R.  316,  S.  C.  ;  Deun  v.  Chubb,  I 
latter  from    controverting   the  plaintiff's  Coxe,  N.  J.  Rep.  466. 

possession,  as  well  as  his  title,  of  wliich  ^  Doe  v.  Da/is,  1  Esp.  R.  3.58 ;  Baron 

possession  is  a  part.     See  Adams  on  Eject,  v.  Abecl,  3  Johns.  481  ;  Symonds  v.  Page, 

336,  note  (q) ;  Calvart  v.  Horsfall,  4  Esp.  1  C.  &  J.  29 ;  Doe  v.  Hare,  4  Tyrwh.  29. 

167  ;  Brown  v.  Galloway,  1  Peters,  C.  C.  For  the  defendant  was  but  nominal,  in  the 

R.  291,  299 ;  Jackson  v.  Combs,  7  Cowen,  ejectment.     Anon.  Lofft,  451. 

R.  36.  6  Goodtitle  v.  Tombs,  3  Wils.  118,  121 ; 

2  Bull.  N.  P.  87,  88 ;  Adams  on  Eject.  Adams  on  Eject.  337  ;  Dewey  v.  Osborn, 
835.  4  Cowen,  329  ;  Dunn  v.  Large,  3  Doug. 

3  Hunter  v.  Britts,  3  Campb.  455  ;  335.  In  Mari/Iand,  the  action  for  mesne 
Adams  on  Eject  337.  profits  is  only  for  the  use  and  occunatioa 


PART  IV.J  EJECTMENT.  301 

§  337.  The  defendant,  in  this  action  for  mesne  profits,  if  he  has 
in  good  faith  made  lasting  improvements  on  the  land,  may  be  allowed 
the  value  of  them,  against  the  rents  and  profits  claimed  by  the 
plaintiff.^  But  he  cannot  set  up  any  matter  in  defence,  which 
would  have  been  a  bar  to  the  action  of  ejectment.^  Nor  is  bank- 
ruptcy a  good  plea  in  bar  of  this  action ;  ^  unless  the  case  is  such 
that  the  damages  were  capable  of  precise  computation,  without  the 
intervention  of  a  jury,  and  might  have  been  proved  under  the  com- 
mission.* 

and  is  no  bar  to  an  action  of  trespass  will  not  be  allowed  for  them  in  this  action, 

qnare  cJausum  fregit,  iov  any  other  injuries  when   brought  by  a  devisee,  but  has  his 

done  to  the  premises  during  the  same  pe-  remedy  against  the  personal  representa- 

riod.     Gill  v.  Cole,  1  Har.  &  J.  403.  tives  of  the  devisor.     Van  Alen  v.  Rogers, 

1  Jackson   v.   Loomis,   4   Cowen,  168;  1  Johns.  Cas.  281.] 

Hylton  V.  Brown,  2  Wash.  C.  C.  R.  165  ;  2  Baron  v.  Abeel,  3  Johns.  481  ;  Jackson 

Cawdor  t>.  Lewis,  1  Y.  &  C.  427.     But  see  v.   Randall,    11    Johns.   405;    Benson  v. 

Russell  V.  Blake,  2  Pick.  505.     [*But  if  Matsdorf,  2  Johns.  369. 

the  tenant  has  made  improvements  on  the  ^  Goodtitle  v.  North,  2  Doug.  584. 

land,  under  a  contract  with  the  owner,  he  *  Utterson  v.  Vernon,  3  T.  R.  5.39 


502  LAW   OF  EVIDENCE.  [PAKT  IV 


EXECUTORS    AND    ADMINISTRATORS. 

[•  §  338.  Executor  or  administrator  must  sue  in  his  representative  capacity  on  cause  of 
action  accruing  in  lifetime  of  testator.  On  contracts  made  with  himself,  may 
sue  in  his  private  or  representative  capacity. 

339.  Representative  character  proved  prima  facie  by  producing  probate  of  will  or 

letters  testamentary, 

340.  Exemplified  copy  of  the  record  of  the  grant  of  letters  admissible.    Letters 

granted  to  wrong  person  voidable;  granted  by  wrong  court,  void. 

341.  All  the  executors  must  join  in  a  suit,  unless  they  have  renounced  the  trust. 

342.  "Where  statute  of  limitations  is  pleaded,  new  promise  to  executor  generally 

sufficient  in  this  country  to  rebut  defence,  though  original  promise  was  to 
testator. 

343.  Defendant  proved  executor  by  probate  of  will,  or  by  acts  of  intermeddling  in 

the  estate. 

344.  Burden  of  proof  on  plaintiff. 

345.  Defendant  pleading  ne  ungues  executor  will  be  charged  with  the  whole  debt  if 

issue  is  found  against  him.     Defences  of  executor  de  son  tort. 

346.  Effect  of  plea,  pJene  administravit,  and  a  traverse  of  it. 

347.  Assets  in  hands  of  defendant  executor  or  administrator  shown  by  inventory  re- 

turned by  him ;  other  facts  proving  the  same. 
347  a.  Facts  proving  a  devastavit. 

348.  Proof  of  assets,  how  rebutted. 

349.  At  common  law,  defendant  may  show,  under  plene  administravit,  a  retainer  of 

assets  to  the  amount  of  a  debt  of  as  high  degree  due  to  himself. 

350.  But  to  do  this  he  must  show  that  he  has  been  rightfully  constituted  executor 

or  administrator. 

351.  The  existence  of  debts  of  a  higher  nature  entitled  to  preference,  but  not  paid. 

can  only  be  proved  under  special  plea. 

352.  Admission  by  one  of  several  executors  not  sufficient  to  bind  others.] 

§  338.  The  evidence,  under  this  title,  relates  to  the  official 
character  of  the  parties,  and  to  the  cases  and  manner  in  which  it 
must  be  proved.  Where  the  executor  or  administrator  is  plaintiff, 
and  sues  upon  a  contract  made  with  the  testator,  or  for  any  other 
cause  of  action  accruing  in  his  lifetime,  he  makes  profert  of  the  let- 
ters testamentary,  or  of  the  letters  of  administration  ;  ^  for  he  must 

1  1  Chitty  on  Plead.  420.     The  practice  Mass.  313 ;    Champlin  v.  Tilley,  3  Day, 

in  the  United  States,  in  this  respect,  is  not  305  ;  Amer.  Free.  Decl.  p.  91  ;  Prettyman 

uniform ;  the  profert,  in  some  of  the  States,  v.  Waples,  4  Harrin^t.  299  ;  Chapman  v. 

being  omitted.    Langdon    v.    Potter,   11  Davis,  4  Gill,  166  ;  Thames  r.  Richardson, 


PART  IV.]  EXECUTORS  AND   ADMINISTRATORS.  30c5 

declare  in  that  character,  in  order  to  entitle  himself  upon  the  rec- 
ord to  recover  judgment  for  such  a  cause  ;  and  if  the  defendant 
would  controvert  the  representative  character  of  the  plaintiff,  in 
such  case,  by  reason  of  any  extrinsic  matter,  not  appearing  on  the 
face  of  the  letters,  such  as  the  want  of  bona  notahilia,  or  the  like, 
he  must  put  it  in  issue  by  a  plea  in  abatement,  or,  as  it  seems,  by 
a  plea  in  bar  ;  ^  and  cannot  contest  it  under  the  general  issue,  this 
being  a  conclusive  admission  of  the  plaintififs  title  to  the  character 
in  which  he  sues.^  But  in  regard  to  causes  of  action  accruing  sub- 
sequent to  the  decease  of  the  testator  or  intestate,  such  as  in  trover, 
for  a  subsequent  conversion  of  his  goods,  or  in  assumpsit^  for  his 
money  subsequently  received  by  the  defendant,  and  the  like,  though 
it  is  always  proper  for  the  plaintiff  to  sue  in  his  representative 
character,  wherever  the  money,  when  recovered,  will  be  assets  in 
his  hands,  yet  it  is  not  always  necessary  that  he  should  do  so.  For 
where  the  action  is  upon  a  personal  contract  made  with  himself 
respecting  the  property  of  the  deceased,  or  is  for  a  violation  of  his 
actual  possession  of  the  assets,  he  may  sue  either  in  his  private  or 
in  his  representative  capacity .^  But  in  other  cases,  where  the 
cause  of  action  accrued  in  his  own  time,  he  must  sue  in  his  repre- 
sentative capacity,  and  must  prove  this  character  under  the  gen 
eral  issue,  which  raises  the  question  of  title.* 

§  339.  The  proof  of  the  plaintiff's  representative  character  is 
made  by  producing  the  probate  of  the  wiir,  or  the  letters  of  admin- 
istration, which,  prma/aa'g,  are  sufficient  evidence  for  the  plain- 
tiff, both  of  the  death  of  the  testator  or  intestate,  and  of  his  own 
right  to  sue.^  "Where  an  oath  of  office  and  the  giving  of  bonds, 
are  made  essential,  by  statute,  to  his  right  to  act,  these  also  must 

3  Strobh.  484.  The  rule  requiring  profert  Williams;  Heath  v.  Chilton,  12  M.  &  W. 
of  letters  testamentary  is  itself  an  excep-  632.  The  allegation  of  his  representative 
tion  from  the  general  rule  that  profert  is  character,  in  these  two  cases,  will  be  re- 
required  of  deeds  only.  Gould  on  Plead-  garded  as  surplusage,  and  needs  not  be 
ing,  p.  442,  §  43.  proved.     Crawford  v.  Whittal,  1  Doug.  4, 

1  Langdon  v.  Potter,  11  Mass.  313,  n.  See  also  Powley  v.  Newton,  6  Taunt. 
316;  1  Chitty  on  Plead.  489,  [358];  1  453,457;  Clark  v.  Hougham,  2  B.  &  C. 
Saund.  274,  note  (3),  by  Williams.  149. 

2  Loyd  V.  Finlayson,  2  Esp.  564  ;  *  Smith  v.  Barrow,  2  T.  K.  476, 477,  per 
Marshfield  v.  Marsh,  2  Ld.  Raym.  824 ;  Ashhurst,  J. ;  CraAvford  v.  Whittal,  1 
Gidley  v.  Williams,  1  Salk.  37,  38;  5  Doug.  4,  note  (1);  Hunt  v.  Stevens,  3 
Com.  Dig.  tit.  Pleader,  2  D.  10,  14;  Wat-  Taunt.  113. 

son   V.  King,  4  Campb.   272  ;  Stokes   v.  ^   In  an  action  on   a  promissory  nof« 

Bate,  5  B.  &  C.  491  ;  Yeomans  v.  Brad-  made  payable  "  to  the  executors  of  the  late 

shaw,  Carth.  373  ;  Hilliard  v.  Cox,  1  Salk.  W.  B.,"  it  was  held  necessary  for  theplain- 

37.    [*  2  Redfield  on  Wills,  187.]  tiffs  to  produce  both  the  probate  of  the 

3  Hunt  V.  Stevens,  3  Taunt.  113,  115;  will  and  the  grant  of  administration  an- 
Hollis  V.  Smith,  10  East,  293  ;  Blackham's  nexed  to  it.  Hamilton  v.  Aston,  1  C  K. 
case,  1  Salk.  290 ;  2  Saund.  47  c,  note  by  679,  per  Rolfe,  B. 


304  LAW   OF   EVIDENCE.  [PART  IV. 

be  proved.  The  prolate  itself  is  the  only  legitimate  ground  of  the 
executor's  right  to  sue  for  tlie  personalty  ;  and  is  conclusive  evi- 
dence, both  of  his  appointment  and  of  the  contents  of  the  will ;  and 
if  granted  at  any  time  previous  to  the  declaration,  it  is  sufficient, 
for  the  probate  relates  back  to  the  death  of  the  testator.^  The  same 
principle  governs  in  the  case  of  an  administrator ;  whose  title, 
though  it  does  not  exist  until  the  grant  of  administration,  relates 
back  to  the  time  of  the  death  of  the  intestate,  so  as  to  enable  him  to 
maintain  an  action  for  an  injury  to  the  goods  of  the  intestate,  or 
for  the  price,  if  they  have  been  sold  by  one  who  had  been  his  agent.^ 
But  the  defendant  may  show  that  the  probate  itself,  or  the  letter  of 
administration,  is  a  forgery  ;  ^  or  that  it  was  utterly  void,  for  want 
of  jurisdiction  over  the  subject,  by  the  court  which  granted  it ;  * 
whether  because  the  person  was  still  living,  or  because  he  had  no 
domicile  within  the  jurisdiction  of  the  court,  where  this  is  essen- 
tial ;^  or  for  any  other  sufficient  cause. 

§  340.  The  plaintiff 's  character  as  administrator  may  also  be 
shown  by  an  exemplified  copy  of  the  record  of  the  grant  of  the  let- 
ters, or  by  a  copy  of  the  book  of  acts  or  original  minutes  of  the 
grant,  as  has  already  been  stated.^  If  letters  of  administration 
have  been  granted  to  the  wrong  person,  they  are  only  voidable, 
and  liable  to  be  repealed ;  but  if  granted  by  the  wrong  court,  they 
are  void. 

§  341.  Where  the  pMntiff  is  bound  to  prove  his  representative 
character  of  executor,  under  the  general  issue,  as  part  of  his  title 
to  sue,  and  it  appears  that  there  are  several  executors^  some  of 
whom  have  not  joined  in  the  suit,  it  is  fatal,  though  all  have  not 
proved  the  will ;  unless  they  have  renounced  the  trust.^  And 
where  the  plaintiff  sues  as  administrator  de  bonis  non,  it  is  sufficient 

1  Smith  V.  Milles,  1  T.  E.  475,  480;  ject-matter,  the  validity  of  its  action  can  be 
Woolley  V.  Clark,  5  B.  &  Aid.  744  ;  Wank-  tried  only  in  the  Probate  Court,  or  in  the 
ford  V.  Wankford,  1  Salk.  299,  301 ,  306,  appellate  court  sitting  as  the  Supreme 
307  ;  Loyd  v.  Finlayson,  2  Esp.  R.  564 ;  1  Court  of  Probate.  Ibid.  See  also  Bel- 
Corn.  Dig.  .340, 341,  tit.  Administration,  linger  r.  Ford,  21  Barb.  311.] 
B.  9,  10;  Dublin  v.  Chadbourn,  16  Mass.  ^  Foster  v.  Bates,  12  M.  &  W.  226; 
433.  The  probate  will  bo  presumed  to  Tharpe  v.  Stallwood,  6  Scott,  N.  R.  715. 
have  been  rightly  made.  Brown  v.  Wood,  '^  Bull.  N.  P.  247  ;  Chichester  v.  Phil- 
17   Mass.    68,    72;    ante,   Vol.   1,   §   550.  lips,  T.  Raym.  405. 

[The  decrees  of  a  Probate  Court,  as  to  the  *  Bull.  N.  P.  143,  247  ;  Nocll  v.  Wells, 

appointment  of  an  administrator  made  in  1  Lev.  235,  236 ;  [Emery  v.   Hildreth,  2 

the  exercise  of  its  jurisdiction,  are  conclu-  Gray,  230.] 

Bive,   in   an   action  by  the   administrator  ^  Harvard  College  v.  Gore,  5  Pick.  370. 
against  a  stranger,  to  recover  a  debt  duo  ^  Ante,  Vol.  1,  §  519. 
to  the   intestate.    Emery   v.   Hildreth,  2  ^  Munt  v.  Stokes,  4  T.  R.  565,  per  Bui- 
Gray,  230.     It  would  seem,  that  where  a  ler,  J. 
Probate  Court  has  jurisdiction  of  the  sub- 


PART  IV.]  EXECUTORS  AND   ADMINISTRATORS.  305 

to  prove  the  grant  of  administration  to  himself,  which  recites  the 
letters  granted  to  the  preceding  administrator,  without  other  proof 
of  the  latter.  1 

§  342.  If  the  action  is  upon  promises  made  to  the  deceased,  to 
which  tlie  statute  of  limitations  is  pleaded,  the  declaration,  accord- 
ing to  the  English  practice,  will  not  be  supported  by  evidence  of  a 
new  promise  made  to  the  executor  or  administrator ;  but  in  the 
American  courts  this  rule  is  not  universally  recognized  ;  and  where 
the  plea  is  actio  non  accrevit  infra  sexannos,  the  weight  of  argument 
seems  in  favor  of  admitting  the  evidence,^  In  both  countries,  leave 
will  be  granted  to  amend  tlie  declaration  by  adding  a  new  count 
on  a  promise  to  the  executor. 

§  343.  If  the  defendant  is  sued  as  executor,  his  representative 
character  may  be  shown,  either  by  the  evidence  already  mentioned 
as  proof  of  that  character  in  the  plaintiff,^  or  by  proof  of  such  acts 
of  intermeddling  in  the  estate  as  estop  him  to  deny  the  title,  con 
stituting  him  what  is  termed  an  executor  de  son  tort.  Yery  slight 
acts  of  intermeddling  have  formerly  been  held  sufficient  for  this 
purpose ;  but  the  material  fact  for  the  jury  to  find  is,  that  the 
party  has  intruded  himself  into  the  office  of  executor ;  and  this 
may  well  be  inferred  from  such  acts  as  are  lawful  for  an  executor 
alone  to  do,  such  as  taking  and  claiming  possession  of  the  goods 
of  the  deceased,  or  selling  them,  or  converting  them  to  his  own 
use  ;  collecting,  releasing,  or  paying  debts ;  paying  legacies ;  or 


1  Catherwood  v.  Chabaud,  1  B.  &  C.  statute.     And  such  also  is  the  practice  in 
155.  Massachusetts,   and  in   Maine.     Baxter  v. 

2  2  Saund.  63,  f.  g.  note  by  "Williams.  Penniman,  8  Mass.  133,  134  ;  Emerson  v. 
In  Green  (or  Dean)  v.  Crane,  2  Ld.  Ravni.  Thompson,  16  Mass.  428  ;  Brown  v.  An- 
1101,  6  Mod.  309,  1  Salk.  28,  which  is'the  derson,  13  Mass,  201  ;  Sullivan  v.  Holker, 
leading  case  on  this  subject,  the  plea  was  15  Mass.  374.  Where  the  issue  is  actio  nor, 
non  assumpsit  infra  sex  annas,  and  to  this  accrevit  infra  sex  annos,  the  technical  reason 
issue  it  was  held,  that  the  evidence  of  a  for  not  admitting  evidence  of  an  acknowl- 
new  promise  to  the  executor  would  not  ap-  edgment  or  promise  to  the  executor  en- 
ply.  So  in  Hickman  v.  Walker,  Willes,  tirely  fails ;  and  indeed,  in  any  case,  f 
27.  In  Sarell  v.  Wine,  3  East,  409,  Jones  promise  to  the  executor  amounts  only  to 
V.  Moore,  5  Binn.  573,  and  Beard  v.  Cow-  an  admission  that  the  debt  due  to  the  tes 
man,  3  Har.  &  McHen.  152,  the  form  of  tator  has  never  been  paid,  but  is  still  sub- 
the  issue  is  not  stated.  In  Fisher  v.  Dun-  sisting,  and  therefore  is  not  barred  by  the 
can,  1  Hen.  &  Munf  563,  and  in  Quarles  Statute  of  Limitations.  See  5  Binn.  582 
V.  Littlepage,  2  Hen.  &  Munf.  401,  the  ac-  583,  per  Brackenridge,  J. ;  Angell  on  Lim- 
tion  was   against  the  executor;  and   the  itations,  p.  278. 

point  in  question  was  therefore  not  before         ^  After  notice  to  produce  the  probate  of 

the  court.     On  the  other  hand,  in  Heylin  the  ,will,   an   office-copy,  and   an  extract 

V.  Hastings,  Carth.  470,  it  was  held,  upon  from  the  yet-book,  have  been  held  admis- 

the  issue  of  non  assumpsit  infra  sex  annos,  sible,  without  proof  that  the  probate  was 

that  evidence  of  a  new  promise  to  the  ex-  in  the  defendant's  possession,  or  of  the  sig- 

ecutor  within  six  years  was  admissible,  as  nature  of  the  registrar.     Waite  v.  Gale,  9 

well  as  sufficient  to  take  the  case  out  of  the  Jur.  782. 
VOL.  II.                                         20 


306  LAW   OF  EVIDENCE  [PART  IV. 

any  other  acts  evincing  a  claim  of  right  to  dispose  of  the  effects  of 
the  deceased.  But  if  the  acts  of  intermeddling  appear  to  have 
been  done  in  kindness,  merely  for  the  preservation  of  the  goods  of 
property,  or  for  the  sake  of  decency  or  charity,  such  as,  in  the 
burial  of  the  dead,  or  the  immediate  support  and  care  of  his  chil- 
dren, or  in  the  feeding  and  care  of  his  cattle  ;  or,  as  the  servant  of 
one  having  the  actual  custody  of  the  goods,  and  in  ignorance  of 
his  title ;  or,  in  execution  of  orders  received  from  the  deceased  as 
his  agent,  in  favor  of  the  vested  rights  of  a  third  person ;  or  the 
like  ;  the  party  will  not  thereby  be  involved  in  the  responsibilities 
of  an  executorship.!  So,  if  he,  in  good  faith,  sets  up  a  colorable 
title  to  the  possession  of  the  goods  of  the  deceased,  though  he  may 
not  be  able  to  establish  it  as  a  completely  legal  title  in  every  re- 
spect, he  will  not  be  deemed  an  executor  de  son  tort?  And  in  all 
these  cases  the  question,  whether  the  party  is  chargeable  as  execu- 
tor de  son  tort,  is  a  mixed  question  of  law  and  fact,  similar  to  the 
question  of  probable  cause,  in  an  action  for  a  malicious  prosecution, 
the  province  of  the  jury  being  only  to  say  whether  the  facts  are 
sufficiently  proved.^ 

§  344.  If  the  defendant  would  controvert  the  fact  of  the  repre- 
sentative character,  this  is  done  by  the  plea  of  ne  ungues  executor, 
or  administrator ;  in  which  case  the  burden  of  proving  the  affirma- 
tive is  on  the  plaintiff;  who  must  prove,  not  only  the  appointment 
of  the  defendant  to  that  office,  but  that  he  has  taken  upon  himself 
the  trust ;  and  this  may  be  by  his  proving  the  will,  or  taking  the 
oaths,  and  giving  bond,  or,  if  he  is  charged  as  executor  de  son  tort, 
by  proving  acts  of  intermeddling  with  the  estate.  The  plaintiff 
should  always  take  the  precaution,  where  this  plea  is  pleaded,  to 
serve  the  defendant  with  notice  to  produce  the  letters  testamentary, 
or  letters  of  administration,  at  the  trial,  they  being  presumed  to 
be  in  his  possession  ;  in  order  to  lay  a  foundation  for  the  introduc- 

1  Williams  on  Executors,  pp.  136  - 146  ;  his  principal,  and  in  the  belief  that  he  is 

1   Dane's  Abr.  ch.  29.  art.  6  ;  Givers  v.  still  alive,  he  has  been  held  liable  to  a  cred 

Higgins,  4  McCord,  28G  ;  Toller  on  Exec-  itor  of  the  deceased,  as  executor  deson  tort. 

utors,  pp.  37-41.     But  if  the  agent,  after  White  v.  Maun,  13  Shepl.361. 

the  decease  of  his  principal,  continues  to  ^    Femings    v.    Jarratt,    1    Esp.    335  ; 

deal  with  the  property  on  his  own  respon-  Tnrner  v.  Child,  1  Dever.  25.     The  party 

sibility,  or  as  the  agent  of  another,  he  may  who  knowingly  receives   goods   from   an 

be   charged   as  executor.     Cottle  v.  Aid-  executor  de  son  tort,  and  deals  with  them 

rich,  4  M.  &  S.  175  ;  1  Stark.  37,  S.  C. ;  as  his  own,  does  not  himself  thereby  be- 

Turner  ».  Child,  1   Dever.  331.     See  also  come   an   executor  de  son  tort.     Paull  v. 

Mitchell  V.  Lunt,  4  Mass.  654,  658  ;  Hob-  Simpson,  9  Ad  &  El.  365,  N.  S. 

by  V.  Kuel,  1  C.  &  K.  716.    So,  if  the  agent  »  Padget  v.  Priest,  2  T.  R.  99,  per  Bul- 

ooatinues  to  act  as  such,  after  the  death  of  ler,  J. 


PART  IV.]  EXECUTORS   AND  AD5UNISTRAT0RS.  307 

tion  of  secoiidary  evidence.^  He  must  also  give  some  evidence  of 
the  identity  of  the  party  with  the  person  described  in  the  letters  as 
executor  or  administrator.  If  the  evidence  shows  the  defendant 
liable  as  an  executor  de  son  tort,  by  intermeddling,  he  may  dis- 
charge himself  by  proof  that  he  delivered  the  goods  over  to  the 
rightful  executor  before  action  brought,  but  not  afterwards  ;  ^  or, 
that  he  subsequently  took  out  letters  of  administration,  and  has  ad- 
ministered the  estate  according  to  law.^  If  he  has  received  the 
money  of  third  persons,  assumpsit  for  money  had  and  received  will 
lie  against  him,  without  declaring  against  him  as  executor.* 

§  345.  By  pleading  ne  unques  executor,  the  defendant,  if  the 
issue  is  found  against  him,  will  be  charged  with  the  whole  debt ;  ^ 
without  being  allowed  to  retain  the  amount  of  a  debt  due  from  the 
deceased  to  himself,  even  if  it  is  of  a  higher  nature,  and  he  has  the 
assent  of  the  rightful  executor,  after  action  brought.^  But  an  ex- 
ecutor de  son  tort  is,  in  general,  liable  to  creditors  only  for  the 
amount  of  the  assets  in  his  hands  at  the  time  of  the  action  ;  and, 
therefore,  if  he  pleads  plene  administravit,  he  may  give  in  evidence 
payment  of  the  just  debts  of  the  deceased,  to  any  creditors  in  the 
same  or  a  superior  degree  ;  ^  or,  as  we  have  just  seen,  he  may  show 
that,  before  action  brought,  he  had  delivered  over  the  goods  in  his 
hands  to  the  rightful  executor  or  administrator.^ 

§  346.  If  the  plaintiff  traverses  the  plea  of  plene  administravit, 
in  its  material  allegation  of  the  want  of  assets  in  the  defendant's 
hands,  the  burden  of  proof  will  be  on  the  plaintiff  to  show  that  the 
defendant  had  assets  in  his  hands  at  the  commencement  of  the 
action.^  If  the  assets  have  come  to  his  hands  since  the  pendency 
of  the  suit,  this  should  be  specially  replied,  or  the  proof  will  not  be 
admissible.^^    If  the  action  is  debt,  the  plea  o^ plene  administravit  is 

1  2  Saund.  on  Plead.  &  Evid.  511,  512  ;  ^  Ireland  v.  Coalter,  Cro.  El.  630  ;  Cur- 
2  Stark.  Evid.  320 ;  Douglas  v.  Forrest,  tis  v.  Vernon,  3  T.  R.  587  ;  2  H.  Bl. 
4  Bing.  686,  704;  Atkins  v.  Tredgold,  2     18. 

B.  &  C.  23,  30 ;  Cottle  v.  Aldrich,  4  M.  &  ^  Mountford  v.  Gibson,  4  East,  441, 445  ; 

S.  175.     Sed  qucere  as  to  this  presumption,  Toller,  Ex'rs,  p.  474.     And  it  seems  that 

and  see  "Waite  v.  Gale,  2  Dowl.  &  Lowndes,  he  may  make  his  defence  even  against  the 

925  ;  9  Jar.  782.  rightful  administrator.     Weeks  v.   Gibbs, 

2  Curtis  V.  Vernon,  3  T.  E.  587 ;  Ver-  9  Mass.  74,  77. 

non  V.  Curtis,  2  H.  Bl.   18;    Andrews  v.  ^  Anon.    1  Salk.  313;  Hob.  49  6,  note 

Gallison,  15  Mass.  325.  by  Williams;  Curtis  v.  Vernon,  3  T.  R. 

3  Shillaber  v.  Wyman,  15  Mass.  322 ;  587;  Vernon  r.  Curtis,  2  H.  Bl.  18;  An- 
Andrews  v.  Gallison,  Id.  325.  drews  v.  Gallison,  15  Mass.  325. 

*  Waite  V.  Gale,  9  Jur.  782;  2  Dowl.  ^  Bentley  v.   Bentley,   7    Cowen,    701. 

&  L.  925.  And  see  Fowler  v.  Sharp,  15  Johns.  323  ; 

6  Anon.  Cro.  El.  472 ;  Mitchell  v.  Lunt,  2  Phil.  Evid.  295. 

4  Mass.  658  ;  Hob.  49  b,  note  by  Williams  ;  "  Mara  v.  Quin,  6  T.  R.  1,  10,  11. 
BuU.  N.  P.  144. 


308  LAW   OF  EVIDENCE.  [PART  IV. 

an  admission  of  the  whole  debt,  which  therefore  the  plaintiff  will 
not  be  bound  to  prove  ;  but  if  the  action  is  assumpsit^  this  plea  is 
only  an  admission  that  something  is  due,  but  not  the  amount ;  and 
therefore  the  plaintiff  must  come  prepared  to  prove  it.^ 

§  347.  The  fact  of  assets  in  the  hands  of  a  defendant,  executor, 
or  administrator,  may  be  shown  by  the  inventory  returned  by  him 
under  oath,  pursuant  to  law  ;  which  devolves  on  him  the  burden 
of  discharging  himself  from  the  items  which  it  contains.^  So,  if  he 
has  repeatedly  paid  interest  on  a  bond,  or  on  a  legacy,  this  is  prima 
facie  evidence  of  assets.^  So,  if  he  has  given  his  own  promissory 
note  for  a  debt  of  the  deceased.^  So,  if  he  has  submitted  to  arbi- 
tration, without  protesting  at  the  time  against  its  being  so  taken.^ 
So,  if  he  confess  judgment,  or  suffer  it  to  go  by  default,  or  it  be 
rendered  against  him  on  demurrer  to  the  declaration  ;  or,  if  he 
plead  a  judgment,  without  averring  that  he  has  no  assets  ultra  ; 
or  plead  payment  without  also  pleading  plene  administravit ;  this 
is  an  admission  of  assets,  and  may  be  used  against  him  in  a  subse- 
quent action  on  the  judgment,  suggesting  a  devastavit.^  But  an 
award  in  favor  of  the  estate  is  no  evidence  that  the  executor  has 
received  the  money  ;  '^  nor  is  a  judgment  assets,  until  the  amount 
is  levied  and  paid.^     And  if  there  are  several  executors,  and  some 

1  Bull.  N.  P.  140 ;  Saunderson  v.  Nich-  ington  v.  Barlow,  7  T.  R.  453  ;  Riddle  v. 

oil,   1   Show.   81  ;    Slielly's  case,  1   Salk.  Sutton,  5  Bing.  200.     But  see  Pearson  v. 

296.  Henry,  .5  T.  R.  f>,  contra. 

2 '  Weeks  r.  Gibbs,  9  Mass.  74;  Bull.  N.  ^  Skelton  v.  Hawling,  1    Wils.  258;  1 

P.  142, 14.3  ;  Hickey  D.  Hayter,  1  Esp.  313  ;  Saund.  219,  note  (8),  by  Williams  ;  Rob- 

6  T.   R.  384,   S.  C. ;  Giles   v.  Dyson,    1  erts  v.  Woods,  3  Dowl.  P.  C.  797  ;  Ewing 

Stark.  32.     But  the  schedule  or  inventory  v.  Peters,  3  T.  R.  685 ;  Rock  v.  Layton, 

offered  by  the  executor  in  the  Ecclesiasti-  1  Ld.  Raym.  589  ;  better  reported  in  3  T. 

cal  Court,  for  the  purpose  of  obtaining  pro-  R.  690  -  694,  from  Ld.  Holt's  own  notes, 

bate,  is  not  generally  any  evidence  that  he  ^  Williams  v.  Innes,  1  Campb.  364. 

has  received  the  effects  therein  mentioned.  »  Jenkins  i;.  Plume,  1  Salk.  207.    [Where 

Stearn  v.  Mills,  4  B.  &  Ad.  657.  there  is  sufficient  real  estate,  liable  to  be 

8  Corporation  of  Clergymen's  Sons  v.  sold   by   due    authority,  to  pay  all  debts, 

Swainson,  1   Ves.   75;  Cleverly  v.  Brett,  legacies,  and  charges,  the  proceeds  of  which 

5  T.  R.  8,  n. ;  Campbell's  case,  Lofft,  68 ;  when  sold  would  be  assets,  and  the  owners 
Attoriiey-Gcn.  v.  Higham,  2  Y.  &  C  634.  of  the  estate,  to  prevent  the  sale,  offer  to 
But  it  is  not  conclusive.     Savage  v.  Lane,  pay  the  amount  in  money,  to  pay  which 

6  Hare,  32 ;  17  Law  J.  89,  Chan. ;  Postle-  it  is  proposed  to  be  sold,  and  such  offer  is 
thwaitc  V.  Mounsey,  6  Hare,  33,  n.  accepted  and  the  money  paid,  especially 
Whether  the  probate  stamp  on  a  will  is  if  done  with  the  approbation  of  the  court 
admissible,  in  England,  as  prima  facie  cvi-  giving  leave  to  sell  the  same,  the  amount 
dcnce  of  assets  in  the  hands  of  the  e.\.ecu-  thus  received  is  assets  of  the  estate,  to  be 
tor  to  the  amount  indicated  by  the  stamp,  accounted  for  and  pa.d  as  assets.  Pay  v. 
is  not  clearly  agreed.  See  Foster  w.  Blake-  Taylor,  2  Gray,  160.  Salary  voted  to  a 
lock,  5  B.  &  C.  328  ;  Curtis  v.  Hunt,  1  C.  person  after  his  decease,  and  paid  to  hig 
&  P.  180;  Steam  v.  Mills,  4  B.  &  Ad.  executor,  is  assets  of  the  estate,  to  be  ac- 
647  ;  Mann  v.  Lang,  3  Ad.  &  El.  699.  counted  for  by  the   executor.      Loring  v. 

*  Bank  of  Troy  v.  Hojjping,  13  Wend.     Cunningham,     9    Cush.     87.       See    also 
675  ;  Holland  v.  Clark,  2  Y.  &  C.  319.  Wheelock   v.  Pierce,  6   lb.  288;  Foot  v. 

6  Barry  v.  Rush.  1  T.  R.  691 ;  Worth-     Knowles,  4  Met.  586.] 


PART  IV.J 


EXECUTORS   AND   ADMNISTRATORS. 


30b 


are  shown  to  have  assets  in  their  hands,  and  others  are  not,  the 
latter  will  be  entitled  to  a  verdict.^ 

§  347  a.  A  devastavit  may  be  proved  by  evidence  of  any  act  of 
direct  abuse,  by  the  executor  or  administrator,  of  the  funds  in- 
trusted to  his  management,  such  as  selling,  embezzling,  or  convert- 
ing them  to  his  own  use  ;  or  by  releasing  a  claim  without  payment, 
or  selling  property  below  its  known  value  ;  or  by  improperly  sub- 
mitting a  claim  to  arbitration  or  improperly  compounding  a  debt, 
having  no  authority  by  law  so  to  do  ;  or  by  payment  of  usury ; 
or  the  like  ;  or  by  proof  of  any  other  act,  showing  mal-administra- 
tion  or  negligence,  whereby  a  loss  or  deterioration  of  assets  has 
ensued. 2 

§  348,  Under  the  issue  of  plene  administravit,  the  defendant 
may  rebut  the  proof  of  assets,  by  showing  that  he  has  exhausted 
them  in  the  payment  of  other  debts  of  the  deceased,  not  inferior 
in  degree  to  that  of  the  plaintiff,  before  the  commencement  of  the 
action.^     And  if  debts  of  an  inferior  degree  have  been  paid  before 

der  the  statute  of  insolvency.  If,  for  exam- 
ple, the  assets  were  less  than  the  privileged 
or  priority  debts,  a  commission  of  insol- 
vency would  be  utterly  useless  to  the  other 
creditors  ;  and  surely  the  law  would  not 
force  the  administrator  to  nugatory  acts. 
In  such  a  case,  it  seems  to  mc  that  a  gen- 
eral plene  administravit  would  be  good,  if 
the  administrator  had  in  fact  applied  the 
assets  in  discharge  of  such  debts.  If  he 
had  not  so  applied  them,  then  he  might 
specially  plead  these  debts  and  no  assets 
ultra.  Other  cases  may  be  put  of  an  analo- 
gous nature,  and  unless  some  stubborn 
authority  could  be  shown,  founded  in  our 
local  jurisprudence  (and  none  such  has 
been  produced),  I  should  not  be  bold 
enough  to  overrule  what  I  consider  a  most 
salutary  doctrine  of  the  common  law. 
Judgments,  bonds,  and  some  other  debts 
at  the  common  law,  are  privileged  debts, 
and  are  entitled  to  a  priority  of  payment. 
And  yet,  if  the  administrator  have  no  no- 
tice, either  actual  or  constructive,  of  such 
privileged  debts,  he  will  be  justified  in  pay- 
ing debts  of  an  inferior  nature,  provided  a 
reasonable  time  has  elapsed  after  the  de- 
cease of  the  intestate.  And  in  principle 
there  cannot  be  any  just  distinction,  whetb  ■ 
er  such  payment  be  voluntary  or  corapul 
sive.  But  in  such  case,  if  he  be  afterwards 
sued  for  such  privileged  debt,  he  cannot 
plead  plene  administravit,  generally,  but  is 
bound  to  aver,  that  he  had  fully  adminis- 
tered before  notice  of  such  debt.*'  United 
States  V.  Hoar,  2  Mason,  317,  318. 


1  Parsons  v.  Hancock,  1  M.  &  Malk. 
330. 

2  See  Toller,  Ex.  b.  3,  ch.  ix. ;  3  Bac. 
Abr.  tit.  Executors  and  Administrators, 
L. ;  2  Kent,  Comm.  416,  notes  (a),  (a), 
5th  edit.  And  see  Cooper  v.  Taylor,  8 
Jur.  450;  Stroud  v.  Dandridge,  1  C.  &  K. 
445. 

3  6  T.  E.  388,  per  Lawrence,  J. ;  Smed- 
ley  V.  Hill,  2  W.  Bl.  1105.  In  the  United 
States,  provision  is  made  by  statutes  for 
the  settlement  of  insolvent  estates,  by  a 
liquidation  of  all  the  claims,  and  a  pro  rata 
distribution  of  the  assets.  The  applica- 
tion of  the  plea  plene  administravit  to  such 
cases  is  thus  stated  by  Mr.  Justice  Story  : 
"  It  does  not  appear  to  me,  that,  upon 
principle,  any  special  plea  o^  plene  adminis- 
travit is  necessary,  where  the  assets  have 
been  in  fact  paid  according  to  the  direc- 
tions of  the  statute  of  insolvency ;  for  if 
the  assets  are  rightfully  applied,  the  mode 
is  matter  of  evidence,  and  not  of  pleading. 
A  special  plene  administravit  can  only  be 
necessary,  where  the  administrator  either 
admits  assets  to  a  limited  extent,  or  he 
sets  up  a  right  of  retainer  for  the  payment 
of  other  debts,  to  which  they  are  legally 
appropriated,  or  he  has  paid  debts  of  an 
inferior  nature,  without  notice  of  the 
plaintiff's  claim.  And  so  is  the  doctrine 
of  the  common  law,  according  to  the 
better  authorities.  In  the  next  place,  it 
seems  to  me  that  there  may  be  cases 
where  the  estate  may  be  insolvent,  and 
yet  the  administrator  would  not  be  bound 
to  procure  a  commission,  and  proceed  un- 


eJlO  LAW  OF  EVIDENCE.  [PART  IV- 

the  commencement  of  the  action,  or  if  debts  of  a  superior  degree 
have  been  paid  while  the  action  was  pending,  this  also  may  be 
shown  under  a  special  plea ;  but  in  the  former  case,  it  must  be 
averred  and  proved  that  the  payment  was  made  without  notice 
of  the  plaintiff's  claim. ^  By  the  common  law,  an  executor  or 
administrator  will  be  presumed  to  have  notice  of  judgments  of 
a  court  of  record,  and  all  other  debts  of  record  ;  but  of  other 
debts,  actual  notice  must  be  proved.^  Where  plene  administravit 
is  pleaded  to  an  action  of  debt  on  bond,  the  defendant  must  prove 
that  the  debts  paid  were  due  by  bonds  sealed  and  delivered,  or, 
that  they  were  of  higher  degree,  and  entitled  to  priority  of  pay- 
ment; but  where  this  issue  arises  in  an  action  for  a  debt  duo 
by  simple  contract,  it  is  sufficient  to  prove  the  prior  payment  of 
a  debj;  of  any  sort,  without  proof  of  the  instrument  by  which  it 
was  secured ;  for  it  is  a  good  payment  in  the  course  of  adminis- 
tration.^ In  either  case,  the  creditor  is  a  competent  witness,  to 
prove  both  the  existence  of  his  debt  and  the  payment  of  the 
money ;  ^  but  where  the  debt  is  said  to  have  been  due  by 
bond,  which  has  been  destroyed,  it  has  been  thought  that  the 
attesting  witnesses,  or  some  other  evidence  of  the  existence  of 
the  bond,  ought  to  be  produced.^ 

§  349.  Under  this  issue,  the  defendant,  by  the  common  law, 
may  in  certain  cases  give  in  evidence  a  retainer  of  assets  to  the 
amount  of  a  debt  of  the  same  or  a  higher  degree,  due  to  him- 
self;^ or,  to  the  amount  of  the  expenses  of  administration,  for 
which  he  has  made  himself  personally  responsible ;  '^  or,  to  the 
amount  of  debts  of  the  same  or  a  higher  degree,  which  he  has  paid 
out  of  his  own  money,  before  the  commencement  of  the  action.^ 
But  if  the  payment  was  made  to  a  co-executor,  to  be  paid  over  to 
the  plaintiff,  which  he  has  not  done,  it  is  no  defence ;  the  re- 

1  Sawyer  v.  Mercer,  1  T.  R.  690 ;  Anon,  that  purpose,  are  reduced  to  the  footing  of 
1  Salk.  153;  Toller,  Ex'r,  269.  But  simple  contract  debts.  Hickey  y.  Hayter, 
where  the  executor,  more  than  a  year  after     6  T.  R.  .384  ;  Toller,  Ex'r,  268. 

the  decease  of  the  testator,  had  paid  all  the  ^  Bull.  N.  P.  143  ;  Saundei'son  v.  Nich- 

debts  and  legacies,  and  paid  over  the  re-  oil,  1  Show.  81. 

mainder  of  the  estate  to  the  residuary  leg-  *  Bull.  N.  P.   143;  Kingston  v.  Gray, 

atee,  witiiout  notice  of  any  other  claim,  1  Ld.  Raym.  745. 

this   was   held   admissible   and   sufficient,  ^  Gillies  v.  Smither,  2  Stark.  528  ;  ante, 

under  the  plene  udniinistravit.     Gov.  &c.  of  Vol.  1,  §  84,  note  2,  ad  calc. 

Chelsea  Waterworks  v.   Cowper,   1    Esp.  »  Bull.  N.  P.  140,  141;  Co.  Lit.  283  a ; 

275,  per  Ld.  Kcnyon.  Plumer   r.    Marchant,   3   Burr.    1380;    1 

2  1  Com.  Dig.  352,  tit.  Administration,  Saund.  333,  note  (8),  by  Williams, 
C.  2  ;  Dver,  32  a.     By  statute  4  &  5  W.  '  Gillies  v.  Smither,  2  Stark.  528. 

&  M.  c.  20,  all  judgments  not  docketed,  or         «  b^u    jg-.  P.  140;  Smedley  v.  Hill,  3 
abstracted  and  entered  in  a  book  kept  for     W.  Bl.  1 105. 


PART  IV.]  EXECUTORS   AND   ADMINISTRATORS.  311 

ceiver  being  in  that  case  made  the  agent  of  the  defendant  him- 
self, and  not  of  the  plaintiff.^  But  in  most  of  the  United  States, 
the  right  of  an  executor  or  administrator  to  retain  for  a  debt  due 
to  himself,  or  for  moneys  which  he  has  paid  for  expenses  of  ad- 
ministration, has  been  qualified  by  statutes,  not  necessary  here 
to  be  stated  ;  so  that,  ordinarily,  he  cannot  retain  for  his  own 
debt,  until  it  has  been  proved  and  allowed  in  the  court  where  the 
estate  is  settled,  and  then  only  under  its  decree,  upon  the  settle- 
ment and  allowance  of  his  account  of  administration, 

§  350.  In  order  to  sustain  the  claim  of  retainer,  it  is  neces- 
sary for  the  party  to  show  that  he  has  been  rightfully  constituted 
executor  or  administrator ;  and  for  this  cause,  as  well  as  to 
prevent  strife  among  creditors,  an  executor  de  son  tort  cannot 
retain  for  his  own  debt,  even  though  it  be  of  higher  degree, 
unless  he  has  since  duly  received  letters  of  administration.  But 
under  the  plea  of  plene  administravit,  he  may  show  that  he  has 
paid  other  debts,  in  their  order ;  or  that,  before  action  brought, 
he  had  delivered  all  the  assets  in  his  hands  to  the  rightful  ex- 
ecutor or  administrator.^ 

§  351.  If  the  defendant  would  give  in  evidence  the  existence 
of  outstanding  debts  of  a  higher  nature,  entitled  on  that  account 
to  be  preferred,  but  not  yet  paid,  he  can  do  this  only  under  a 
special  plea.  It  the  debts  are  due  by  obligations  already  forfeited, 
the  penalties  are  ordinarily  to  be  taken  as  the  amount  of  the 
debt ;  unless,  by  a  proper  replication,  it  is  made  to  appear  that 
the  penalty  is  kept  on  foot  by  fraud.  But  if  the  obligation 
is  not  yet  forfeited,  the  sum  in  the  condition  is  to  be  regarded 
as  the  true  debt,  and  assets  can  be  detained  only  to  that  amount ; 
for  the  executor,  by  payment  of  this  sum,  may  save  the  penalty ; 
and  if  he  does  not,  it  will  be  a  devastavit.^  In  these  cases,  when 
the  defendant  seeks  to  retain  the  assets  in  his  hands  to  meet 
debts  of  a  higher  nature,  whether  by  bond  or  judgment,  though 
the  plea,  in  point  of  form,  contains  an  averment  of  the  precise 
value  of  the  goods  in  his  hands,  yet  the  substance  of  the  issue 

1  Crosse  V.  Smith,  7  East,  246,  258.  after  forfeiture,  would  have  taken  less  than 

2  Bull.  N.  P.  143 ;  Chitty's  Free.  p.  the  penalty,  and  the  executor  had  assets 
301  ;  Curtis  v.  Vernon,  3  T.  R.  587,  590 ;  to  the  amount  required,  which  he  did  not 
Anon.  1  Salk.  313 ;  Oxenham  v.  Clapp,  pay,  it  is  evidence  of  fraud.  Ibid.  And 
3  B.  &  Ad.  309.  if  a  judament  is  confessed  for  more  than 

8  United  States  v.  Hoar,  2  Mason,  311 ;  is  actually  due,  this  is  prima  facie  evidence 

Bull.  N.  P.  141  ;  1  Saund.  333,  n.  (7),  (8),  of  fraud  ;  but  the  defendant  may  rebut  it 

by  Williams  ;  Id.  334,  n.  (9)  ;    Parlvcr  v.  by   proof  that   it  was   done  by  mistake. 

Atfield,  1  Salk.  311.     K  a  bond  creditor,  Pease  v.  Naylor,  5  T.  R.  80. 


312  LAW   OF  EVIDENCE.  [PAET  IV. 

is,  that  the  value  of  the  goods,  whatever  it  be,  is  not  greater  than 
the  amount  actually  due  on  the  bond  or  judgment.^  And  where 
an  outstanding  judgment  is  pleaded,  with  a  replication  of  per 
fraudem,  the  judgment  creditor  is  not  a  competent  witness  for  the 
defendant  to  disprove  the  fraud.^  If  several  judgments  or  debts 
are  pleaded,  and  the  plea  is  falsified  as  to  any  of  them,  the  plain- 
tiff will  be  entitled  to  recover.^ 

§  352.  Where  there  are  several  executors  or  administrators, 
an  admission  hy  one  of  them  that  the  debt  is  still  due  is  held  not 
sufficient  to  enable  the  plaintiff  to  recover  against  the  others ; 
though  it  may  be  properly  admissible,  as  a  link  in  the  chain 
of  testimony  against  them.*  Nor  is  such  admission  by  one  suffi- 
cient to  take  the  case  out  of  the  statute  of  limitations  as  to  all.^ 

1  Moon  V.  Andrews,  Hob.  133 ;  1  Saund.  *  James  v.  Hackley,  15  Johns.  277  ;  For 
333,  n.  (7),  by  Williams.  syth   v.  Ganson,  5  Wend.  558;  Hammon 

2  Campion  v.  Bentley,  1  Esp.  343.  v.  Huntley,  4  Cowen,  493. 

8  Ibid. ;  Bull.  N.  P.  142  ;  Parker  v.  At-  ^  TuUock  v.  Dunn,  Ry.  &  M.  416  ;  ante, 
field,  1  Salk.  311;  1  Lord  Raym.  678.  Vol.  1,  §  176.  But  see  Hammoa  i>.  Hunfc- 
But  see  1  Saund.  347, n.  (I),  by  Williama.     ley,  4  Cowen.  493 


PART  IV.]  HEIB.  313 


HEIR. 

[*%  353.  Subject  of  this  title. 

354.  One  claiming  as  heir  must  prove  his  relationship,  and  that  no  other  one  e&Ists 

to  impede  the  descent  to  him.    In  charging  one  as  heir,  sufficient  generally  to 
prove  heii'ship. 

355.  Want  of  issue  may  be  presumed  from  a  long  lapse  of  time  since  the  death 

without  claim. 

356.  Heir  is  liable  at  common  law  upon  deed  ofhis  ancestor  in  which  he  is  specially 

named.    Extent  of  liability. 

357.  Ordinarily  creditor's  first  remedy  is  against  the  personalty. 

358.  The  heir  takes  the  land  of  his  ancestor,  subject  to  be  sold  for  the  payment  of 

debts. 

359.  Effect  of  plea  of  nens  per  descent  considered. 

360.  Proof  of  reversion  in  fee  after  mortgage  or  lease  for  years  sufficient  proof  of 

assets. 

361.  Not  settled  whether  heir  shall  be  charged  on  account  of  lands  lying  in  a  for« 

eign  state.] 

§  353.  The  rules  of  evidence,  applicable  to  the  proof  of  pedigree 
in  general,  having  been  considered  in  the  preceding  volume,^  the 
present  title  will  be  confined  to  the  evidence  of  heirship,  where 
this  fact  is  particularly  put  in  issue,  as  the  foundation  of  a  claim 
of  right,  or  of  liability. 

§  354.  Where  A  claims  as  the  heir  of  B,  it  will  be  necessary 
to  establish,  first,  affirmatively,  their  relationship  through  a  com- 
mon ancestor ;  and  secondly,  negatively,  that  no  other  descendant 
from  the  same  ancestor  exists,  to  impede  tlie  descent  to  A.  Thus, 
in  ejectment,  where  it  was  incumbent  on  the  lessor  of  the  plain- 
tiff to  prove  that  a  younger  brother  of  the  person  last  seised,  from 
whom  he  deduced  his  title,  was  dead,  without  issue  ;  the  testi- 
mony of  an  elderly  lady,  a  member  of  the  family,  that  the 
younger  brother  had  many  years  before  gone  abroad  when  a  young 
man,  and  according  to  repute  in  the  family  had  died  abroad,  and 
that  she  never  had  heard  in  the  family  of  his  having  been  married, 
was  held  prima  facie  evidence  of  his  having  died  without  issue.^ 
But  where  the  death  is  only  proved  in  such  case,  without  some 

1  See  ante,  Vol.  1,  §§  103  - 107,  131  - 134.  «  Doe  v.  Griffin,  15  East,  293. 


314  LAW   OF   EVIDENCE.  [PART  IV. 

negative  proof  of  the  existence  of  issue,  it  is  not  sufficient ;  the 
plaintifif  being  bound  to  remove  every  possibility  of  title  in 
another,  before  he  can  recover  against  the  person  in  possession.^ 
Thus  also,  if  it  were  requisite  to  establish  the  title  of  A,  as  heir 
at  law  to  his  cousin-german,  B,  it  would  be  necessary  to  prove 
the  marriage  and  death  of  their  common  grandparents,  and  of 
their  respective  parents,  through  whom  the  title  was  deduced ; 
that  these  were  the  legitimate  children  of  the  common  ancestor ; 
and  that  A  and  B  were  also  the  lawful  issue  of  their  parents ; 
with  evidence  to  show  that  no  other  issue  existed,  who  would 
take  the  preference  to  A.  But  in  charging  one  as  heir,  general 
evidence  of  heirship  will  be  sufficient  to  be  adduced  on  the  part 
of  the  plaintiff,  it  being  a  matter  more  peculiarly  within  the  de- 
fendant's own  knowledge.^  Thus,  if  he  is  in  possession  of  the 
property  of  the  deceased,  or  has  received  rents  from  his  tenants, 
it  is  to  be  presumed  that  he  claims  them  as  heir.^ 

§  355.  After  a  long  lapse  of  time  since  the  death  of  one  who 
might  have  been  entitled  without  any  adverse  claim,  it  may 
be  presumed  that  he  died  without  issue. ^  The  fact  of  the  death 
of  a  party,  but  not  the  time  of  it,  will  be  presumed  after  the 
expiration  of  seven  years  from  the  time  when  he  was  last  known 
to  be  living.^  And  it  may  be  inferred  from  the  grant  of  letters  of 
administration  on  his  estate,  in  the  absence  of  any  controlling  cir- 
cumstances ;  since  it  is  not  the  course  to  grant  administration, 
without  some  evidence  of  the  death.^ 

§  356.  The  liahility  of  an  heir  generally  arises  upon  the  obliga- 
tion of  the  ancestor  by  deed,  in  which  the  heir  is  expressly  bound. 
He  is  liable,  at  common  law,  to  an  action  of  debt  on  the  bond 
of  his  ancestors,  if  specially  named  ;  "^  and  in  England,  by  statute, 
to  an  action  of  covenant.  The  like  remedies  have  also  been  given 
against  devisees,  by  statutes.  But  the  remedy  in  effect  is  rather 
against  the  lands  of  the  obligor,  in  the  hands  of  the  heir,  than 
against  the  person  of  the  heir ;  and  it  cannot  be  extended  beyond 
the  value  of  the  assets  descended,  unless  the  heir,  by  neglecting 
to  show  the  certainty  of  them,  should  render  himself  personally 

1  Richards  v.  Eichards.l 5  East,  293,  note,     time  of  the  death  is  to  be  inferred  from  the 

2  See  ante,  Vol.  1,  §  79.  circumstances.  Doe  v.  Nepcan,  5  B.  &  Ad. 
8  Derisley  v.  Cnstance,  4  T.  R.  7.5.  86  ;  Rust  v.  Baker,  8  Sim.  443 ;  nupra, 
*  Doe  V.  WoUey,  8  B.  &  C.  22;  3  C.  &     tit.  Death. 

P.  402,  S.  C.  "  See  ante,  Vol.  1,  §  550 ;  Succession  of 

6    Doe  V.  Jcsson,  6  East,  85,  per  Ld.     Hainblin,  .'3  Hob.  (Louis.)  R.  130 
Ellenborough;    ante,  Vol.   1,  §  41.     The        "^  Co.  Lit.  209  a. 


PART  IV.]  HEER.  315 

liable.^  For  if  he  should  plead  that  he  has  nothing  by  descent, 
and  the  jury  should  find  that  he  has  anything,  however  small  in 
amount,  the  plea  will  be  falsified,  and  the  plaintiff  will  be  entitled 
to  a  general  judgment  for  his  entire  debt ;  whereas  if  he  should 
confess  the  debt,  and  show  the  amount  of  the  assets  in  his  hands, 
he  will  be  answerable  only  to  this  amount.^ 

§  357.  In  the  United  States,  the  entire  property  of  the  deceased, 
real  as  well  as  personal,  constitutes  a  trust  fund  for  the  payment 
of  his  debts.  The  modes  in  which  this  trust  is  carried  into  effect 
are  various,  and  are  usually  prescribed  by  statutes ;  but  in  some 
States,  the  forms  of  remedy  are  left  at  common  law.  The  general 
feature,  that  the  personalty  must  first  be  resorted  to,  is  uniformly 
preserved ;  and  in  several  of  the  States,  the  executor  or  adminis- 
trator is  empowered  by  license  from  the  courts,  after  exhausting 
the  personal  assets,  to  enter  upon  and  sell  the  real  estate,  whether 
devised  or  not,  to  an  amount  sufficient  to  discharge  the  debts. 
Ordinarily,  therefore,  in  the  first  instance,  the  creditor  must  resort 
to  the  personal  representative,  and  not  to  the  heir,  for  the  payment 
of  the  debt;  unless  the  cause  of  action,  as  in  the  case  of  a  cove- 
nant of  warranty,  not  previously  broken,  did  not  accrue  until  all 
remedy  against  the  executor  or  administrator  was  barred  by  the 
statute  of  limitations.^ 

§  358.  Wherever  the  executor  or  administrator,  by  the  statutes 
alluded  to,  is  authorized  to  apply  to  the  courts  for  leave  to  sell  the 
land  of  the  deceased,  for  the  payment  of  his  debts,  the  heir  takes 
the  land  subject  to  that  right  and  contingency  ;  and  when  the  land 
is  thus  sold,  the  title  of  the  heir  is  defeated,  and  he  has  nothing  by 
descent,  and  may  well  plead  this  plea  in  bar  of  an  action,  brought 
against  him  by  a  creditor,  upon  the  bond  of  his  ancestor.^ 

§  359.   The  plea  of  riens  per  descent  admits  the  obligation  ;  but 

1  2  Saund.  7,  note  (4),  by  Williams.  [Where  the  land  of  one  deceased  is  taken 

2  Ibid  ;  riowd.  440  ;  2  Roll.  Abr.  71  ;  for  a  railroad,  the  heir,  and  not  the  admin- 
Buckley  V.  Nightingale,  1  Stra.  665.  The  istrator,  is  entitled  to  the  damages  for  such 
plea  0?  non  est  factum,  if  found  against  the  taking  and  to  prosecute  for  the  recovery 
heir,  is  not  such  a  false  plea  as  will  render  thereof,  although  the  administrator  has 
him  liable  de  bonis  propriis.  2  Saund.  7,  previously  represented  the  estate  to  be  in- 
note  (4) ;  Jackson  v.  Rosevelt,  13  Johns,  solvent,  and  afterwards  obtains  a  license 
97.  to  sell  the  intestate's  real  estate  for  the  pay- 

^  4  Kent,  Comm.421,422;  Hutchinson  ment  of  debts.     Boynton   v.    The  Peter- 

V.  Stiles,   3  N.   Hamp.   404;    Webber  v.  boro',  &c.  R.   Road,  4  Ciish.  467.     The 

Webber,  6  Greenl.  127  ;  Royce  v.  Burrell,  case  was  this  :  Oliver  Page  died  intestate, 

12  Mass.  395  ;  Hall  v.  Bumstead,  20  Pick,  seised  of  real  estate,  leaving  one  daughter, 

2;  [Roe  v   Swazey,  10  Barb.  247.]  his  heir  at  law.     His  whole  real  and  per- 

*  Covel  B.  Weston,  20  Johns.  414.    And  sonal  estate  was   insuificienl;   to   pay  his 

see    Gibson    v.    Farley,    16    Mass.    280,  debts.    His  administrator  obtained  a  li- 


316  LAW   OF  EVIDENCE.  [PART  IV. 

the  proof  of  assets  is  incumbent  on  the  plahitiff.  And  the  sub- 
stance of  this  issue  is,  whether  the  defendant  had  assets  or  not. 
The  place,  therefore,  is  not  material  to  be  proved ;  nor  is  it 
material  whether  the  land  was  devised  by  the  ancestor,  or  not, 
nor  whether  it  was  charged  with  the  payment  of  debts  or  legacies, 
or  not,  provided  the  heir  takes  the  same  estate  which  would  have 
descended  to  him  without  the  will,  its  nature  and  quality  not 
being  altered  by  the  devise.^  But  it  is  material  for  the  plaintiff, 
where  he  declares  against  the  defendant  as  the  immediate  heir 
of  the  obligor,  to  show  that  the  assets  came  to  the  defendant  as 
heir  of  the  obligor,  and  not  of  another  person.  For  where  the 
obligor  died  seised  of  the  lands,  leaving  issue,  and  the  issue  died 
without  issue,  whereupon  the  lands  descended  to  the  defendant 
as  heir,  not  of  the  obligor,  but  of  the  obligor's  son,  the  plea  of 
riens  per  descent  directly  from  the  obligor,  was  held  maintained.^ 
And  where  the  ancestor  of  the  obligor  died  seised  of  a  reversion 
expectant  on  a  lease  for  years,  leaving  the  obligor  his  heir,  but 
no  rent  was  paid  to  the  obligor,  the  lands  being  supposed  to  have 
passed  to  a  stranger  by  devise  from  the  ancestor ;  yet  it  was  held, 
that  the  possession  of  the  tenant  was  in  law  the  possession  of  the 
heir,  and  so  the  obligor  was  seised  in  fact,  and  the  land  became  as- 
sets in  the  hands  of  his  heir,  whose  plea  of  riens  per  descent  from 
the  obligor  was  therefore  falsified. ^  But  if  the  intermediate  heir  was 
never  seised,  his  successor  in  the  same  line  of  descent  would  take 
as  heir  to  the  obligor,  who  was  last  seised,  and  be  liable  accord- 
ingly.* Under  this  plea,  by  the  common  law,  the  heir  might  show 
that,  prior  to  the  commencement  of  the  suit,  he  had  in  good  faith 
aliened  the  lands ;  but  this  has  been  changed  by  statute.^ 

cense  to   sell  the  real  estate.     After  the  made,  the  heir  was  entitled  to  the  damages 

death  of  the  intestate,  but  before  the  license  Ibid.      See   also    Wilson   v.    Wilson,    IS 

was  ol)taincd,  the  railroad  corporation  filed  Barb.  252;  Vansyckle  v.  Richardson,  13 

the  location  of  their  road,  by  which  a  part  111.  171.] 

of  said  real  estate  was  taken  for  the  rail-  i  Bull.  N.  P.  175;  Allam  v.  Heber,  2 

road.    Tiie  question  was,  whether  the  heir  Stra.  1270;  [Ellis  v.  Paige,  7  Cash.  161  ; 

or  the  administrator  should  have  the  dam-  Gilpin    v.    Hollingsworth,    3    Md.     190; 

ages  for  the  land  thus  taken ;  and  the  court  Buckley  v.  Buckley,  1 1  Barb.  4.S.] 

held,  that,  as  the  right  to  damages  for  land  ^  Jenks's  case,  Cro.  Car.   1.51  ;  Kellow 

taken  for  public  use  accrues  at  "the  time  of  v.  Rowden,  3  Mod.  253  ;  Chappcll  v.  Lee, 

taking,  and  as  in  the  case  of  railroads  that  3  Mod.  256;  Duke  v.  Spring,  2  Roll.  Abr. 

time  is  prima  facie,  and  in  the  absence  of  709,  pi.  62. 

other  proof,  the  time  of  filing  the  location,  ^  Bushby  v.  Dixon,  3  B.  &  C.  298. 

and  as  the  lieir  at  law  was  seised  and  pos-  *  Kellow   v.    Rowden,   2   Mod.    253 ;  1 

sessed  of  the  estate  taken  at  the  time  of  the  Show.  244,  S.  C. 

taking,  subject  only  to  bo  defeated  by  a  ^2  Saund.  7,  n.  (4),  by  Williams ;  Bull. 

Bale,  not  then  made,  nor  authorized  and  N.  P.  175;  [Ticknor  v.  Harris,  14  N.  H 

licensed  by  competent    authority    to    bo  272.] 


PART  IV.]  HEIR.  817 

§360.  In  p7'Gof  of  assets,  it  ^\\\  be  sufficient  for  the  plaintiff 
to  show  that  the  defendant  is  entitled,  as  heir,  to  a  reversion 
in  fee  after  a  mortgage  or  lease  for  years ;  or  to  a  reversion 
expectant  upon  an  estate  tail,  provided  the  limitation  in  tail 
has  expired,  and  the  reversion  has  vested  in  possession,  in  the 
heir.  But  a  reversion  after  a  mortgage  in  fee  is  not  assets  at 
law,  though  it  is  in  equity.^  A  reversion  expectant  upon  an 
estate  for  life  is  also  assets ;  but  it  must  be  pleaded  specially .^ 

§  361.  Whether  lands  lying  in  a  foreign  state  or  country  can 
be  regarded  as  assets,  so  as  to  charge  the  heir,  is  a  point  not 
perfectly  clear.  In  one  American  case  it  has  been  decided  that 
they  were  not.  No  reasons  were  given  for  the  decision ;  but 
cogent  arguments  were  urged  by  the  learned  counsel  for  the 
creditor,  showing  that  upon  principle,  as  well  as  by  analogy  of 
law,  the  heir  was  chargeable.^ 

1  2  Saund,  7,  note  (4),  by  Williams ;  against  the  heir  in  England,  but  that 
Plunkett  V.  Benson,  2  Atk.  294;  Bushby  lands  in  Scotland  were  not,  is  erroneous; 
V.  Dixon,  3  B.  &  C.  298.  no   such  point   being   mentioned   in  that 

2  Bull.  N.  P.  176 ;  Kellow  v.  Rowden,  case,  which  was  only  a  question  of  chan- 
3  Mod.  253;  Carth.  126,  S.  C. ;  Anon,  eery  jixrisdiction.  The  mistake  has  arisen 
Dyer,  373  b.  [Where  a  person  makes  a  from  a  misprint  of  and  for  as.  [Where 
deed  which  conveys  no  estate,  the  land  land  in  Ohio  descended  to  a  resident  in 
descends  to  his  heir,  who  takes  it  uncondi-  Kentucky,  and  it  did  not  appear  that  by 
tionally,  and  he  is  not  obliged  to  restore  the  laws  of  Ohio  a  descent  of  lands  to  an 
the  consideration  received  by  his  ancestor,  heir  were  assets  which  rendered  him  liable 
Flanders  v.  Davis,  19  N.  H.  139.]  to  the  debts  of  his  ancestor,  the  heir  was 

2  Austin   V.  Gage,   9   Mass.   395.     See  held  not  to  be  liable  to  a  creditor  of  his 

Dowdale's  case,  6  Co.  46  ;  Covell  v.  Wes-  ancestor  for  the  lands  so  descended  as  as- 

ton,  20  Johns.  414.    The  reference  in  1  sets.     Brown  v.  Brashford,   II  B.  Mon. 

Vern.  419,  to  Evans  v.  Ascough,  Latch,  67] 
284    that  lands  in  Ireland   were    assets 


B18  LAW   OF   EVIDENCE.  fPART  IV. 


INFANCY. 

i*  §  362.  Infancy  is  a  personal  privilege.     Burden  of  proof  on  infant. 

363.  Party's  age  may  be  proved  by  testimony  of  persons  acquainted  with  him  from 

birth,  or  by  proof  of  his  own  admissions. 

364.  Defence  of  infancy  avoided  by  showing  consideration  of  promise  to  be  necessa- 

ries, or  by  showing  new  promise. 

365.  Necessaries,  such  things  as  are  useful  and  suitable  to  the  party's  state  and  con- 

dition in  life. 

366.  Evidence  of  necessaries  rebutted  by  proof  that. he  was  otherwise  supplied. 

367.  Burden  of  proof  of  new  promise  is  upon  the  plaintiff.    What  constitutes  a  rat- 

ification by  infant  of  his  contract. 

368.  Infancy  is  no  defence  to  an  action  ex  delicto.] 

§  362.  Infancy  is  a  personal  privilege  or  exception,  to  be  taken 
advantage  of  only  by  the  person  himself;  and  the  burden  of  proof 
rests  on  him  alone,  even  though  the  issue  is  upon  a  ratification 
of  his  contract,  after  he  came  of  age.^  The  trial  by  common  law 
is  either  upon  inspection  by  the  court,  or  in  the  ordinary  manner 
of  other  facts,  by  the  jury ;  but  in  the  United  States  the  latter 
course  only  is  practised. ^ 

§  363.  The  fact  of  the  -party's  age  may  be  proved  by  the  testi- 
mony of  persons  acquainted  with  him  from  his  birth  :  or,  by  proof 
of  his  own  admissions;  for  these  are  receivable,  even  in  criminal 
cases,  the  infant  being  regarded  as  competent  to  confess  the  truth 
in  fact,  though  he  may  lack  sufficient  discretion  to  make  a  valid 
contract.^  An  entry  of  his  baptism  in  the  register  is  not  of  itself 
proof  of  his  age;  but  if  it  is  shown  to  have  been  made  on  tlio 
information  of  the  parents,  or  others  similarly  interested,  it  may 
be  admitted  as  a  declaration  by  them ;  and  in  the  ecclesiastical 
courts,  it  is  strong  adminicular  evidence  of  minority.*      If  tin; 

1  Borthwick  v.  Carruthers,  1  T.  K.  648  ;  ence  to  his  age  and  understanding.  The 
Loader  v.  Barry,  1  Esp.  253 ;  Jeuno  v.  State  v.  Guikl,  5  Ilalst.  163,  189,  190. 
Ward,  2  Stark.  326.  [*  O'Neill  v.  Head,  7  Ir.  Law  R.  434.] 

2  Silver  v.  Shelback,  1  Dall.  165.  *  Wihen  v.  Law,  3  Stark.  63  ;  Burghart 
8  llailer.  Lillie,  3  Hill,  N,  Y.  Rep.  149;     v.   Angerstein,   6    C.   &  P.   690;  Agg  v. 

McCoon  V.  Smith,  Id.  147  ;  Mather  v.  Davies,  2  Pliil.  345 ;  Jeunc  v.  Ward,  2 
Clark,  2  Aikens,  209  But  his  admissions  Stark.  326  ;  Rex  v.  Clapham,  4  C.  &  P. 
should  be  weighed  cautiously,  with  refer-     29.     In  the  United  States,  where   birtlis 


PART  IV.]  mFANCT.  319 

action  is  against  the  acceptor  of  a  bill,  the  defendant  upon  the 
issue  of  infancy  must  distinctly  prove  not  only  his  real  age,  but 
also  the  day  on  which  he  accepted  the  bill ;  unless  he  is  proved 
to  have  been  under  age  at  the  commencement  of  the  action ; 
for  otherwise  it  does  not  appear  that  he  was  an  infant  at  the 
time  he  entered  into  the  contract,  the  date  of  the  bill  not  being 
even  presumptive  evidence  of  the  time  of  acceptance. ^ 

§  364.  The  defence  of  infancy^  to  an  action  of  assumpsit,  is 
avoided  by  showing,  either  (1.)  that  the  consideration  of  the 
promise  was  necessaries  furnished  to  him ;  or,  (2.)  a  ratification 
of  the  contract,  by  a  new  promise  after  he  came  of  age.^  Upon 
the  issue  of  necessaries  or  not,  when  specially  pleaded,  no  evi- 
dence of  minority  is  requisite,  it  being  admitted  by  the  course 
of  pleading.  The  burden  of  proving  the  issue  of  necessaries 
is  on  the  plaintiff. 

§  365.  Necessaries  are  such  things  as  are  useful  and  suitable 
to  the  party's  state  and  condition  in  life,  and  not  merely  such  as 
are  requisite  for  bare  subsistence.^  And  of  this  the  jury  are  to 
judge,  under  the  advice  and  control  of  the  court.*  It  has  been 
held,  that  money  lent  to  an  infant,  to  supply  himself  with  neces- 
saries, is  not  recoverable ;  ^  but  if  the  necessaries  were  previously 
specified  and  were  actually  purchased,  it  seems  that  an  action  for 

are  required  by  law  to  be  recorded,  a  copy  v.  Wilson,  3  Day,  57  ;  Beeler  v.  Young,  1 

of  the  record  is  usually  received  as  sutH-  Bibb.  519.     If  upon  the  trial  of  this  issue, 

cient  evidence  of  the  fticts  it  recites,  which  any  part  of  the  articles  are  proved  to  be 

it  was  the  officer's  duty  to  record.  necessaries,  the  evidence  ought  to  be  left 

1  Israel  v.  Argent,  1  Chitty's  Prec.  314,  to  the  jury.     Maddox  v.  Miller,  1  M.  &  S. 

note  (b) ;  Blyth  v.  Archbold,  Ibid.  738.     [It  is  the  province  of  the  court  to  de- 

^  [It  is  not  a  sufficient  answer  to  a  plea  termine  whether  the  articles  sued  for  are 

of  infancy  in  an  action  on  a  contract,  that  within  the  class  of  necessaries,  and  it  is  the 

the  infant  fraudulently  represented  himself  proper  duty  of  the  jury  to  pass  upon  the 

to  be  of  full  age.    Mcrriam  v.  Cunningham,  questions   of  the   quantity,    quality,    and 

11  Cush.  40;  Burley  v.  Russell,  10  N.  H.  their  adaptation  to  the  condition  and  wants 

184.]  of  the  infant.     Merriam  v.  Cunningham, 

=5  Peters  v.  Fleming,  6  M.  &  W.  42  ;  11  Cush.  40.  See  Swift  r.  Bennett,  10  lb. 
Burghart  v.  Angerstein,  6  C.  &  P.  690;  437.]  [*  Taylor  says,  "  Perhaps  the  safest 
Wharton  v.  Mackenzie,  5  Ad.  &  El.  606,  rule  that  can  be  laid  do\vn  on  this  subject 
611,  N.  S.  ["  It  (necessaries)  is  a  flexible  is,  that  the  judge  must  determine  whether 
and  not  an  absolute  term,  having  relation  the  articles  are  capable  of  being  necessaries, 
to  the  infant's  condition  in  life,  to  the  hab-  regard  being  had  to  the  position  of  the  de- 
its  and  pursuits  of  the  place  in  which,  and  fendant ;  and  if  he  should  decide  in  the 
the  people  among  whom,  he  lives,  and  affirmative,  the  jury  will  then  have  to  say 
to  the  changes  in  those  habits  and  pur-  whether,  under  the  circumstances,  they  were 
suits  occurring  in  the  progress  of  society."  necessaries  or  not.  Taylor  on  Ev.  52.] 
By  Thomas,  J.  Breed  v.  Judd,  1  Gray,  ^  Probart  v.  Knouth,  3  Esp.  472,  n. ; 
458.]    _  Bull.  N.  P.  154.     An  infant  is  liable  for 

*  Ibid. ;  Harrison  v.  Fane,  4  Jar.  508  ;  such  goods  furnished  to  him  to  trade  with 

1  Scott,  N.  R.  287 ;  1  M.  &  G.  550,  S.  C. ;  as   were   consumed   as   necessaries  in  his 

Brayshaw  v.  Eaton,  5  Bing.  N.  C.  231  ;  own  family.     Tuberville  v.  Whitehouse,  1 

Peters  v.  Fleming,  6  M.  &  W.  42 ;  Stanton  C.  &  P.  94. 


320 


LAW   OF  EVIDENCE. 


[part  IV. 


the  goods,  as  furnished  by  the  plaintiff  through  the  agency  of  the 
infant  himself,  may  be  maintained.^  And  payments  of  wages 
to  an  infant,  in  order  to  purchase  necessaries,  have  been  held 
valid  payments.^  Regimentals  for  an  infant  member  of  a  volun- 
teer military  company ;  ^  and  a  livery  for  a  minor  captain's  ser- 
vant ;  *  and  a  horse  for  an  infant  nearly  of  age,  advised  by  his 
physician  to  take  exercise  on  horseback;  have  been  held  neces- 
sary .^'^'^ohronometer,  ordered  by  a  lieutenant  in  the  navy,  has 
been  held  otherwise.^ 

§  366.  The  evidence  of  necessaries  may  be  rebutted  by  proof 
-that  the  party  lived  under  the  roof  of  his  parent,  who  provided 
him  with  such  things  as  in  his  judgment  appeared  proper ;  ^  or, 
that  he  had  already  supplied  himself  with  the  like  necessaries, 
from  another  quarter ;  ^  or,  that  a  competent  allowance  was  made 
to  him  by  his  guardian  for  his  support ;  ®  or,  that  he  was  properly 
supplied  by  his  friends.^^  It  is  ordinarily  incumbent  on  the 
tradesman,  before  he  trusts  an  infant  for  goods  apparently  neces- 
sary for  him,  to  inquire  whether  competent  provision   has  not 


1  Ellis  V.  Ellis,  1  Ld.  Ravm.  344 ;  3 
Salk.  197,  pi.  11;  12  Mod.  197  ;  Marlow 
V.  Pitfield,  1  P.  Wms.  558 ;  Earle  v.  Peale, 
1  Salk.  386  ;  Crantz  v.  Gill,  2  Esp.  472, 
note  (1),  by  Mr.  Day;  Randall  v.  Sweet, 

1  Denio,  460,  per  Bronson,  J.  It  has  been 
recently  decided  in  New  YorTc,  that  moneif 
lent  for  tlie  purchase  of  necessaries,  and 
actually  so  applied,  may  be  recovered  in  an 
action  for  money  lent.     Smith  v.  Oliphant, 

2  Sandf.  S.  C.  R.  306.  Money  advanced 
to  procure  his  liberation  from  lawful  arrest 
on  civil  process  is  necessary.  Clarke  v. 
Leslie,  5  Esp.  38.  An  infant  widow  is 
bound  by  her  contract  for  the  expenses  of 
her  husband's  funeral,  he  having  left  no 
assets.  Chappel  v.  Cooper,  13  M.  &  W. 
252. 

2'Hedgley  v.  Holt,  4  C.  &  P.  104.  [An 
infant  is  liable  for  money  paid  at  his  re- 
quest by  the  plaintiff  to  a  third  person  for 
necessaries  furnished  the  infant.  Swift  v. 
Bennett,  10  Cush.  436.  If  one  who  is  a 
surety  on  a  note  given  by  an  infant  for  ne- 
cessaries pays  the  money,  the  infant  must 
reimburse  him.  Conn  v.  Coburn,  7  N.  H. 
368.  Where  a  negotiable  note  is  given  by 
an  infixnt,  the  promisee,  if  he  brings  an 
action  thereon,  may  siiow  that  it  was  given 
in  whole,  or  in  part,  for  necessaries,  and 
may  recover  thereon  as  much  as  the  neces- 
saries for  which  it  was  given  were  really 
worth.     Earle  v.  Reed,  10  Met.  387.] 

*  Coates  V.  Wilson,  5  Esp.  152. 


*  Hands  v.  Slaney,  8  T.  R.  578. 

5  Hart  V.  Prater,  1  Jur.  623.  But  gen- 
erally a  horse  is  not  necessary.  Rainwater 
v.  Durham,  2  Nott  &  McC.  524. 

6  BeroUes  v.  Ramsay,  Holt's  Cas.  77. 
And  see  Charters  v.  Bayntum,  7  C.  &  P. 
52.  [An  infant  is  not  liable  for  grain  fur- 
nished for  horses  owned  by  a  firm  of  which 
he  was  a  member,  though  the  horses  were 
employed  in  the  usual  business  of  the  firm, 
and  though  he  was  emancipated  by  his 
father.  Mason  v.  Wright,  13  Met.  306. 
Nor  can  he  be  held  to  pay  for  repairs  put 
upon  his  dwelling-house  under  a  contract 
made  by  him,  altliough  the  repairs  were 
necessary  to  prevent  immediate  and  serious 
injury  to  the  house.  Tupper  v.  Cad  well, 
12  Met.  559.  The  board  of  four  horses  for 
six  months,  the  principal  use  of  which  by 
the  infant  was  in  the  business  of  a  hack- 
man,  is  not  within  the  class  of  necessaries, 
although  the  horses  were  occasionally  used 
to  carry  his  family  out  to  ride.  Merriam 
V.  Cunningham,  1 1  Cush.  40.] 

7  Borrinsale  v.  Grcville,  1  Selw.  N.  P. 
128;  Bainbridge  v.  Pickering,  2  W.  Bl. 
1325  ;  Cook  v.  Deaton,  3  C.  &  P.  114. 

8  Burghart  v.  Angerstein,  6  C.  &  P. 
690. 

9  Mortara  v.  Hall,  6  Sim.  465;  Burg- 
hart V.  Hall,  4  M.  &  W.  727. 

w  Story  V.  Pcry,  4  C.  &  P.  526  ;  Angell 
V.  McLellan,  16  Mass.  31;  Wailing  v. 
Toll,  9  Johns.  141. 


PART  IV.J 


INFANCY.  321 


already  been  made  for  him  by  others  ;  ^  but  there  is  no  inflexible 
rule  of  law,  rendering  inquiries  into  the  infant's  situation  and 
resources  absolutely  indispensable,  as  a  condition  precedent  to 
the  right  to  recover.^  And  the  necessity  for  any  inquiry,  where 
otherwise  it  would  be  incumbent  on  the  tradesman,  may  be  done 
away  by  the  conduct  of  the  other  parties  ;  as,  for  example,  if  the 
goods  were  delivered  with  the  knowledge  of  the  parent,  and 
without  objection  from  him.^ 

§  367.  Upon  the  issue  of  a  subsequent  ratification  of  the  con- 
tract by  a  new  promise,  the  burden  of  proof  is  on  the  plaintiff,  the 
fact  of  infancy  being  admitted  by  the  pleadings.  But  proof  of 
the  promise  is  sufficient,  without  proof  that  the  party  was  then 
of  full  age.*  The  contracts  and  acts  of  an  infant  are  in  general 
voidable,  and  capable  of  confirmation  when  he  comes  of  age  ;. 
those  alone  being  treated  as  absolutely  void  which  are  certainly 
and  in  their  nature  prejudicial  to  his  interest.  Thus,  his  nego- 
tiable promissory  note,  though  formerly  considered  void,  is  now 
held  voidable  only ;  ^  and  his  statement  of  an  account  is  also 
now  held  capable  of  ratification  after  he  comes  of  age.^  There 
is,  however,  a  distinction  between  those  acts  and  words  which  are 
necessary  to  ratify  an  executory  contract  and  those  which  are 
sufficient  to  ratify  an  executed  contract.  In  the  latter  casOj  any 
act  amounting  to  an  explicit  acknowledgment  of  liability  will 
operate  as  a  ratification ;  as,  in  the  case  of  a  purchase  of  land 
or  goods,  if,  after  coming  of  age,  he  continues  to  hold  the  prop- 
erty and  treat  it  as  his  own.'^     But,  in  order  to  ratify  an  execu- 

1  Ford  V.  Fothergill,  Peake's  Cas.  229  ;  Fox  &  Smith,  15.     [*  The  appljcation  and 

1  Esp.  21),  S.  C. ;  Cook  u.  Deaton,  3  C.  import  of  the  terms  "  void  "  and  "  voidable  " 

6  P.  1 14.  were  fully  considered  in  State  ».  Richmond, 
'-^  Bravshawi'.  Eaton,5Bing.  N.  C.  231 ;  26  N.  H.  232,  and  in  Pearsoll  v.  Chapin, 

7  Scott, "lS-3,  S.  C. ;  3  Jurist,  222.  44  Penn.  St.   R.  9.     See  also  Person  v. 
3  Dalton  V.  Gib,  5  Biug.  N.   C.  198;  7  Chase,  37  Vt.  648.] 

Scott,  117,  S.  C. ;  3  Jur.  43.  "  Hubbard  v.  Cummings,  1  Greenl.  11  , 

*  Hartley   v.  Wharton,   11    Ad.  &  El.  Lawson  u.  Lovejoy,  8  Greenl.  405  ;  Dana 

934;  3  P.  &  D.  539,  S.  C. ;  Borthwick  v.  v.  Coombs,  6  Greenl.  89  ;  Chittvon  Contr. 

Carruthcrs,  1  T.  R.  648.  p.  125  a ;  1  Roll.  Abr.  731,  1.  45  ;  Evelyn 

^  Goodsell    V.   Myers,   3   Wend.    479;  v.    Chichester,  3  Burr.  1719;    Tucker   v. 

Reed  I--.  Batchelder,  1  Met.  559 ;  Lawson  y.  Moreland,    10   Pet.    75,    76;    Jackson    r. 

Lovejoy,  8  Greenl.  405  ;  Fisher  v.  Jewett,  Carpenter,  11  Johns.  542  ;  Boston  Bank 

1  Burton's  R.  (New  Bruns.)  p.  35;  Story  v.  Chamberlain,  15  Mass.  220  ;  Boyden  v. 

on  Contr.  §  38;  Boody  v.  McKenney,   10  Boyden,  9  Met.  519;  Armfield  v.  Tate,  7 

Shepl.  517.  Ircd.  258  ;  Van  Dorens  v.  Everett,  2  South. 

6  Williams  v.  Moor,  11  M.  &W.  256,  460;  Boody  v.  McKenney.  10  Shepl.  517 

265.     An  infant's  bond  has  been  held  void-  This  case  was  assumpsit  upon  a  promisso- 

able  only,  and  not  void.  Conroe  v.  Birdsall,  ry  note,  given  by  an  infant  for  personal 

1   Jolins.  Cas.   127  ;  Fant  v.  Cathcart,  8  property,  which,  after  coming  of  age,  he 

Ala.  725.     But  see,  contra,  Baylis  v.  Dine-  liad  sold  ;  and  he  was  held  liable,  as  hav- 

ley,  3  M.  &  S.  477  ;  Hunter  v.  Agnew,  1  iug  thereby  affirmed  the  contract.     Shep- 

VOL.  II.  21 


822 


LAW   OF  EVIDENCE. 


[part  IV. 


tory  agreement  made  during  infancy,  there  must  be  not  only  an 
acknowledgment  of  liability,  but  an  express  confirmation  or  new 


ley,  J.,  in  deliverinf^  the  judgment  of  the 
court,  reconciled  the  apparently  conflict- 
ing decisions  upon  the  liability  of  an  infant 
on  his  contracts,  by  reference  to  the  differ- 
ent situations  and  circumstiinccs  in  which 
he  was  placed,  in  regard  to  tlie  subject-mat- 
ter; classifying  them  as  follows  :  — 

"  1.  When  he  has  made  a  conveyance 
of  real  estate  during  infancy,  and  would 
affirm  or  disnffiiin  it,  after  he  becomes  of 
age.  In  such  case,  the  mere  acquiescence 
for  years  to  disaffirm  it  affords  no  proof 
of  a  ratifloation.  There  must  be  some 
positive  and  clear  act  performed   for  that 

fjurposc.  The  reason  is,  that,  by  his  si- 
ent  acquiescence,  he  occasions  no  injury 
to  other  persons,  and  secures  no  bene- 
fits or  new  rights  to  himself.  There  is 
nothing  to  urge  him,  as  a  duty  towards 
otliers,  to  act  speedily.  Language,  appro- 
priate in  otiier  cases,  requiring  him  to  act 
within  a  reasonable  time,  would  become 
inappropriate  here.  He  may,  therefore, 
after  years  of  acquiescence,  by  an  entry,  or 
by  a  conveyance  of  the  estate  to  another 
person,  disaffirm  and  avoid  the  conveyance 
made  during  his  infancy.  Jackson  v.  Car- 
penter, 11  Johns.  .539;  Curtis  v.  Patton, 
11  S.  &  R.  311  ;  Tucker  v.  Moreland,  10 
Pet.  .58.  [*A  neglect  for  fourteen  years 
after  coming  of  age  to  bring  an  action  to 
disaffirm  a  sale  of  land  made  during  mi- 
nority is  not  an  affirmance.  Urban  v. 
Grimes,  2  Grant's  Cas.  96.] 

"  2.  When,  during  infancy,  he  lias  pur- 
chased real  estate,  or  has  taken  a  lease  of 
it  subject  to  the  payment  of  a  rent,  or  has 
granted  a  lease  of  it  upon  payment  of  a 
rent.  In  such  cases,  it  is  obvimis,  wlien 
he  becomes  of  age,  that  he  is  under  a 
necessity,  or  that  common  justice  imposes 
it  upon  him  as  a  duty,  to  make  his  elec- 
tion within  a  reasonable  time.  He  cannot 
enjoy  the  estate,  after  he  becomes  of  age, 
for  years,  and  then  disaffirm  the  purchase, 
and  refuse  to  jjay  for  it,  or  claim  the  con- 
sideration paid.  Or  thus  enjoy  the  leased 
estate,  and  then  avoid  payment  of  the  stip- 
ulated rent.  Or  receive  rent  oti  the  lease 
granted,  and  tlien  disaffirm  the  lease.  When 
he  will  receive  a  benefit  by  silent  acqui- 
escence, he  must  make  his  election  within 
a  reasonable  time  after  he  arrives  at  full 
age,  or  the  l)enefits  so  received  will  be  sat- 
isfactory proof  of  a  ratification.  Ketsey's 
Case,  Cro.  Jae.  320  ;  Evelyn  v.  Ciiichester, 
3  Burr.  1765;  Hubbard  v.  Cummings,  1 
Ureenl.  11  ;  Dana  v.  Coombs,  6  Greenl. 
89 ;  Barnaby  v.  Barnaby,  1  Pick.  221  ; 
Kiine  v.  Beebc,  6  Conn.  404.  In  the  case 
of  Benham  v.  Bishop,  9  Conn.  330,  it  ap- 


peared, that  the  defendant  and  his  mother 
and  sisters  were  in  possession  and  owned 
land  in  common,  and  that  defendant, 
while  an  infant,  made  his  note  to  another 
sister  for  a  conveyance  to  liim  of  her  undi- 
vided share  of  the  same  estate,  aiul  that 
they  continued  to  occupy  the  land  in  tlio 
same  manner  several  years  after  he  became 
of  age,  and  it  was  decided  not  to  amount 
to  a  ratification  of  the  note.  This  case  can 
only  be  regarded  as  correctly  decided  by 
considering  the  defendant  as  having  occu- 
pied only  by  virtue  of  his  own  previous 
title  as  a  tenant  in  common. 

"3.  When  he  has,  during  his  infancy, 
sold  and  delivered  personal  property. 
When  the  contract  was  executed  by  his 
receiving  payment,  it  is  obvious,  that  ho 
can  receive  no  benefit  by  acquiescence ; 
and  it  alone  does  not  confirm  the  contract. 
When  the  contract  remains  unexecuted, 
and  he  holds  a  bill  or  note  taken  in  pay- 
ment for  the  property,  if  he  should  collect 
or  receive  the  money  due  upon  it  or  any 
part  of  it,  that  would  afiirm  the  contract. 
Should  he  disaffirm  the  contract  and  re- 
claim the  property,  the  bill  or  note  would 
become  invalid.  He  cannot  disaffirm  it 
until  after  he  becomes  of  age.  And  if  he 
then  does  it,  there  are  cases  which  assert, 
when  the  contract  has  become  executed, 
tliat  he  must  restore  tiie  consideration  re- 
ceived. Badger  v.  Phinnev,  15  Mass.  R. 
363;  Roofw.  Stafford,  7  Cowcn,  179. 

"  4.  When  he  has  piirchrtsed  and  re- 
ceived personal  property  during  infancy. 
When  tlie  contract  has  been  executed  by  a 
payment  of  the  ]mve,  if  he  would  disaffirm 
it,  he  should  restore  the  property  received. 
When  the  contract  remains  unexecuted, 
the  purchase  liaving  been  made  upon  credit, 
he  may  avoid  the  contract  by  plea  during 
infancy,  or  after  he  becomes  of  age,  before 
he  has  affirmed  it.  It  lias  been  asserted  in 
such  case,  that  he  should  be  held  to  refund 
the  consideration  received  for  the  contract 
avoided.  Reeve's  Dom.  Rel.  213.  Ho 
admits,  however,  that  the  current  of  Eng- 
lish authorities  is  otherwise.  If  he  had 
received  property  during  infancy,  and  hail 
spent,  consumed,  wasted,  or  destroyed  it; 
to  require  him  to  restore  it  or  the  valuo 
of  it,  u])on  avoiding  the  contract,  would  bo 
to  deprive  him  of  the  very  protection  which 
it  is  the  policy  of  the  law  to  afford  him. 
There  might  be  more  ground  to  contend 
for  the  right  to  reclaim  specific  articles 
remaining  in  his  hands  unchanged  at  tho 
time  of  the  avoidance  of  the  contrsict. 
When  he  continues  to  retain  the  specific 
property,  or  any  part  of  it,  after  he  becomes 


PART  IV.] 


INFANCY. 


323 


promise,  voluntarily  and  deliberately  made  by  the  infant,  upon 
his  coming  of  age,  and  with  the  knowledge  that  he  is  not  legally 
liable.  An  explicit  acknowledgment  of  indebtment,  whether  in 
terms,  or  by  a  partial  payment,  is  not  alone  sufficient ;  for  he  may 
refuse  to  pay  a  debt  which  he  admits  to  be  due.  But  an  express 
confirmation  of  the  agreement,  as  still  obligatory,  is  sufficient.^ 
And  if  the  promise  be  express  to  pay  when  he  is  able,  the  plaintiff 
must  prove  the  defendant's  ability  to  pay,  or,  at  least,  that  osten- 
sibly he  is  so ;  but  he  is  not  bound  to  prove  that  the  payment 
can  be  made  without  inconvenience.^  The  new  promise  must, 
in  all  cases,  be  shown  to  have  been  made  prior  to  the  commence- 
ment of  the  action.^ 

§368.  Infancy  is  no  defence  to  an  action  ex  delicto;  but  an 
action  in  that  form  cannot  be  maintained,  where  the  foundation 
of  it  appears  to  have  been  a  contract,  which  the  infant  has  tor- 


of  full  age,  it  becomes  his  duty  within  a 
reasonable  time  to  make  his  election.  If 
snch  were  not  the  rule,  he  might  continue 
to  use  for  years  a  valuable  machine  until 
neai'ly  worn  out,  and  thus  derive  benefit 
from  it,  and  yet  avoid  the  contract,  and 
refuse  to  pay  for  it.  And  when  after  a 
reasonable  time  he  continues  to  enjoy  the 
use  of  the  property,  and  then  sells  it,  or 
any  part  of  it,  and  receives  the  money  for 
it,  he  must  be  considered  as  having  elected 
to  affirm  the  contract ;  and  he  cannot 
afterwards  avoid  payment  of  the  con- 
sideration. This,  as  before  shown,  is  the 
well-settled  rule  in  relation  to  real  estate 
purchased  or  leased ;  and  the  principles 
applied  in  those  decisions  appear  to  be 
equally  applicable  here.  Such  was  the 
decision  in  Lawson  v.  Lovejoy,  8  Greenl. 
405  ;  Chesire  v.  Barrett,  4  McCord,  241  ; 
Dennison  v.  Boyd,  1  Dana,  45  ;  Delano 
V.  Blake,  11  Wend.  85."  Sec  10  Shepl. 
523  -  526.  See  also  1  Hare  &  Wallace's 
Am.  Leading  Cases,  pp.  109-115,  where 
the  cases  on  this  subject  are  cited  and 
classified.  [But  such  acts  must  be  volun- 
tary on  the  pai't  of  the  minor,  and  must 
make  manifest  his  intention  to  keep  the 
property  when  he  has  the  power  to  keep 
it  or  relinquish  it  at  his  election.  Thus 
where  goods,  not  necessaries,  were  bought 
by  an  infimt,  and  the  vendor,  three  days 
before  he  became  of  age,  brought  his  ac- 
tion against  the  infant  for  the  price,  and 
attached  the  goods  on  the  writ,  and  the 
goods  remained  in  the  officer's  hands  up 
to,  and  at,  the  time  of  tl\e  trial  of  the  ac- 
tion, and  the  defendant  gave  no  notice, 
after  he  became  of  age,  to  the  plaintifl^,  of 
his  intention  not  to  be  bound  by  the  con- 


tract of  sale,  it  was  held  to  be  no  ratification 
of  the  contract  of  sale.  Smith  v.  Kellcy, 
1.3  Met.  309  ;  Tibbetsi;.  Gerrish,  5  Foster, 
(N.  H.)  41  ;  Stokes  v.  Brown,  4  Chand. 
(Wis.)  39.  The  special  contract  of  a  mi- 
nor to  labor  is  ratified  by  his  continuance 
in  it  for  a  month  after  he  comes  of  age, 
and  he  cannot  afterwards  avoid  it.  For- 
syth V.  Hastings,  1  Williams  (Vt.),  646.] 

1  Story  on  Contracts,  §  49  ;  Chitty  on 
Contr.  124  (4th  Am.  edit.),  and  cases  there 
cited ;  Smith  i-.  Mavo,  9  Mass.  62 ;  Ford 
V.  Phillips,  1  Pick.  202  ;  Whitney  v.  Dutch, 
14  Mass.  457,  461  ;  Thrupp  v.  Fielder,  2 
Esp.  628  ;  Harmer  v.  Killing,  5  Esp.  102. 
By  Stat.  9  Geo.  4,  ch.  14,  §  5,  it  is  now 
necessary,  in  England,  that  the  new  prom- 
ise or  ratification  be  in  writing  and  signed 
by  the  party  to  be  charged.  And  it  is 
held  that  any  written  instrument,  signed 
by  the  party,  which,  if  signed  by  a  per- 
son of  fall  age,  would  have  amounted  to 
an  adoption  of  the  act  of  a  party  acting 
as  an  agent,  will,  in  the  case  of  an  infant 
who  has  attained  his  majority,  amount  to 
a  ratification  of  his  promise.  Harris  v. 
Wall,  1  Exch.  R.  122.  And  see  Hartley 
V.  Wharton,  11  Ad.  &  El.  934;  [Mawson 
V.  Blane,  26  Eng.  Law  &  Eq.  560.  An 
admission  of  an  infant  as  to  the  amount 
of  a  claim  may  be  used  to  show  the  amount 
due,  although  it  may  not  be  sufficient  to 
render  him  liable.  Ackerman  v.  Run- 
yon,  1  Hilton,  169.] 

^  Thomson  v.  Lay,  4  Pick.  48  ;  Colo 
V.  Saxby,  3  Esp.  160.  And  see  Davies  v. 
Smith,  4  Esp.  36 ;  Besford  v.  Saunders,  3 
H.  Bl.  116. 

3  Thornton  v.  Illingworth,  2  B.  &  C. 
824;  4D.  &R.  525,  S.  C. 


324  LAW   OF  EVIDENCE.  [PART  IV. 

tiously  violated.^  Thus,  if  he  hired  a  horse,  which  he  injured 
by  treating  negligently,  or  by  riding  immoderately,  the  plaintiff 
cannot  charge  the  infant  in  tort,  by  a  mere  change  of  the  form 
of  action,  where  he  would  not  have  been  chargeable  in  assumpsit. 
To  such  an  action,  the  plea  of  infancy  in  bar  is  held  good.^  But 
if  the  contract  was  wholly  abandoned  by  the  infant,  as  if  he 
hire  a  horse  to  go  to  a  certain  place,  and  goes  to  a  different  place, 
or  wantonly  beats  the  animal  to  death,  he  is  liable  in  trover 
or  trespass.^  On  the  other  hand,  if  the  action  is  brought  in 
assumpsit,  but  the  foundation  is  in  tort,  as  for  money  which  he 
has  fraudulently  embezzled,  the  plea  of  infancy  is  not  a  good 
bar.* 

1  [An  infant  is  liable  to  an  action  ex  de-  in  20  Am.  Jur.  267.]  Vasse  v.  Smith,  6 
Ucto,  for  fraudulent  representations  as  to  Cranch,  226.  See  Story  on  Contracts, 
his  age  in  procuring  a  contract  which  he  §  45.  [In  an  action  against  an  infant  on 
subsequently  avoids  by  the  defence  of  in-  a  promissory  note  given  by  an  infant  for  a 
fancy.  Titts  v.  Hall,  9  N.  H.  441.  But  chattel  which  he  had  obtained  by  fraud, 
qucBre.  See  Merriam  v.  Cunningham,  11  and  which  he  refused  to  deliver  on  demand, 
Cush.  40  ;  Price  v.  Hewett,  18  Eng.  Law  the  infant  prevailed  on  the  plea  of  infancy. 
&  Eq.  522,  and  note.]  Subsequently  an  action  of  tort  for  the  con- 

2  Jennings  v.  Eundall,  8  T.  E.  337.  version  of  the  chattel  was  brought  against 

3  Vasse  V.  Smith,  6  Cranch,  226  ;  Camp-  him,  and  he  was  held  liable  therein,  he 
bell  i\  Stakes,  2  Wend.  137;  [Towne  v.  having  sold  the  chattel  before  the  demand 
Wiley,  23  Vt.  (8  Washb.)  355.]  was  made  upon  him.     Walkei  v.  Davis,  ' 

*  Bristow    V.    Eastman,    1    Esp.    172.     Gray,  506.] 
iTbe  authority  of  this  case  is  questioned 


PABT  IVj  INSANITY.  325 


INSANITY. 

[*  §  369.  It  is  generally  agreed  that  the  executed  contract  of  a  lunatic  is  to  be  regarded 
very  much  like  that  of  an  infant. 

370.  Insanity  of  mind  generally  a  valid  bar  to  an  action  upon  an  executory  con- 

tract. 

371.  Condition  of  party's  mind  proved  like  other  facts  to  the  jury. 

371  a.  Insanity  is  a  delusion  consisting  in  a  belief  of  facts  which  no  rational  per- 
son would  believe. 

372.  A  higher  degree  of  insanity  required  to  absolve  a  party  from  a  criminal 

charge  than  to  discharge  him  from  a  contract. 

373.  Sanity  presumed.     Question  for  the  jury  is  whether  the  accused  at  the  time 

of  the  act  knew  the  difference  between  right  and  wrong  in  reference  to  the 
act  with  which  he  is  charged. 

374.  Drunkenness,  a  dcfeuce  to  an  action  on  a  contract,  but  not  to  a  prosecution  for 

crime.] 

§  369.  Whether  lunacy,  or  insanity  of  mind,  is  in  all  cases 
a  valid  bar,  per  se,  to  an  action  on  the  contract  of  the  party,  has 
been  much  controverted,  both  in  England  and  America.  The 
rule  that  a  man  shall  not  be  permitted  to  stultify  himself  is  now 
entirely  exploded ;  and  the  question  is  reduced  to  this,  namely, 
whether  a  person  non  coynpos  mentis  can  make  any  contract  which 
shall  bind  him.  This  has  led  to  a  distinction,  taken  between 
contracts  executed  and  contracts  executory ;  and  it  seems  now 
to  be  generally  agreed,  that  the  executed  contract  of  such  per- 
son is  to  be  regarded  very  much  like  that  of  an  infant ;  and 
that,  therefore,  when  goods  have  been  supplied  to  him  which 
were  necessaries,  or  were  suitable  to  his  station  and  employment, 
and  which  were  furnished  under  circumstances  evincing  that  no 
advantage  of  his  mental  infirmity  was  attempted  to  be  taken,  and 
which  have  been  actually  enjoyed  by  him,  he  is  liable,  in  law 
as  well  as  equity,  for  the  value  of  the  goods.^     Thus,  a  person 

1  Chitty  on  Contr.  108-112;  Story  on  1  Sid.  112.  [A  question  has  been  made 
Contr.  §§  23,  24,  25  ;  Stock  on  Non  Com-  whether  the  deed  of  a  person  of  unsound 
potcs  Mentis,  pp.  26  -  30,  and  cases  there  mind  conveying  land  is  void,  or  only  void- 
cited  ;  Thompson  v.  Leach,  3  Mod.  310;  able.  It  was  held  to  be  voidable  only,  and 
Seaver  v.  Phelps,  11  Pick.  304;  Neill  u.  not  void,  in  Allis  v.  Billings,  6  Met.  415. 
Morley,  9  Ves.  478  ;  Stiles  v.  West,  cited  The  question  was  very  fully  considered  in 


326 


LAW   OF  EVIDENCE. 


[part  IV. 


of  unsound  mind  has  been  held  liable  in  assumpsit  for  work  and  *" 
]abor,i  and  for  carriages,  suitable  to  his  rank  and  condition.^ 


Arnold  v.  Richmond  Iron  Works,  1  Gray, 
437,  and  in  delivering^  the  opinion  of  the 
court,  Shaw,  C.  J.,  spoke  as  follows  :  — 

"  The  present  case  is  so  like  the  recent 
case  of  Allis  v.  Billinp:s,  6  Met.  415,  in  all 
its  essential  features,  that  it  seems  hardly 
necessary  to  do  more  than  cite  that  case. 
It  was  there  held  that  when  a  deed  convey- 
ing land  had  been  duly  signed,  sealed,  de- 
livered, and  acknowledged,  and  placed  in  a 
condition  to  be  put  on  record,  by  one  of 
unsound  mind,  and  cash  and  notes  had 
been  given  by  the  grantee  in  security  and 
satisfaction  for  the  price,  such  deed  was 
voidable,  and  not  void  ;  and  that  if,  after- 
wards, and  after  the  grantor  was  restored 
to  his  right  mind,  he  did  acts  deliberately, 
manifesting  an  intention  to  ratify  and  con- 
firm the  transaction  of  sale  and  convey- 
ance, he  could  not  afterwards  avoid  tliat 
deed  by  alleging  that  he  was  insane  when 
he  made  it.  Such  a  deed,  to  many  pur- 
poses, is  equivalent  to  a  feoffment  with 
livery  of  seisin  ;  and  we  believe  it  has  long 
been  held,  by  the  rules  of  the  common  law, 
that  such  a  feoffinent  would  pass  a  seisin 
de  facto,  and  vest  the  estate  in  the  feoftee, 
subject  to  be  avoided  by  matter  of  record, 
entry,  or  by  some  of  the  modes  allowed  by 
law  for  avoiding  and  annulling  the  effect 
of  such  a  conveyance.  To  this  extent,  the 
rule  would  seem  to  be  founded  on  the 
plainest  principles  of  justice,  as  -well  as 
law.  In  such  case,  the  conveyance  of  an 
estate  by  bargain  and  sale  on  the  one  side, 
and  by  the  payment,  or  contract  for  the 
payment,  on  the  other,  constitutes  one  en- 
tire transaction,  mutually  conditional  and 
dependent.  It  must  be  affirmed  or  avoided 
as  a  whole.  It  cannot  be  affirmed  in  part, 
so  as  to  hold  the  price,  and  disaffirmed 
in  part,  so  as  to  avoid  the  conveyance. 
Badger  t>.  Phinney,  \b  Mass.  359. 

"If,  then,  the  unfortunate  person  of  un- 
sound mind,  coming  to  the  full  possession 
of  his  mental  faculties,  desires  to  relieve 
himself  from  a  conveyance  made  during 
his  incapacity,  he  must  restore  the  price,  if 
paid,  or  surrender  the  contract  for  it,  if  un- 
paid. In  short,  he  must  place  the  grantee, 
in  all  respects,  as  far  as  possible,  in  statu  quo. 
To  that  extent,  the  case  of  Allis  v.  Billings 
does  go,  and  we  think  it  is  well  sustained 
by  the  authorities  cited.  We  say  nothing 
here  of  a  bond,  covenant,  or  other  instru- 
ment purely  executory,  where  the  obliga- 
tion arises  solely  from  the  act  of  a  dispos- 


ing mind,  binding  a  person  to  some  obli- 
gation or  duty,  and  under  which  no  estate 
or  property  has  passed  or  been  transferred  ; 
norif  such  a  contract  would  l)0  voidable,  and 
not  void,  do  we  consider  here  what  acts, 
either  of  record  or  in  pais,  would  be  suffi- 
cient, on  the  part  of  the  party  contracting, 
after  being  restored,  to  avoid  or  to  confirm 
such  contract.  Such  a  case  may  depend 
upon  its  own  peculiar  circumstances,  to  be 
judged  of  as  they  arise.  The  case  of  Allis 
V.  Billings  is  one  where  a  party,  restored 
to  his  right  mind,  having  a  full  Jus  difipo- 
nendi,  and  full  capacity  to  judge  and  act  in 
the  conduct  of  his  affairs,  finding  what  had 
occurred  whilst  his  mind  was  under  a  cloud, 
balancing  the  advantages  to  himself  of 
reclaiming  his  land  or  holding  the  price, 
prefers  the  latter.  By  doing  this,  he  ne- 
cessarily affirms  the  deed  by  which  he  in 
terms  alienated  his  land. 

"  In  the  very  full  argument  offered  by 
the  counsel  for  the  phiintiff  in  this  case,  it 
was  suggested,  rather  than  distinctly  pro- 
posed to  the  court,  to  revise  the  case  relied 
on,  on  the  ground  that  there  were  author- 
ities, deserving  of  consideration,  leading  to 
a  contrary  result.  Undoubtedly  there  have 
been  various  views  taken  of  this  difficult 
subject,  and  there  may  be  some  discrepancy 
in  the  cases,  especially  whilst  the  maxim 
prevailed,  that  no  man  could  stultify  him- 
self, or,  in  other  words,  could  plead  his  own 
insanity  to  avoid  his  acts  and  contracts ; 
a  maxim  founded  mainly  on  considerations 
of  policy,  from  the  danger  that  men  might 
feign  past  insanity,  and  be  tempted  to  pro- 
cure false  testimony  to  establish  it,  in  or- 
der to  avoid  and  annul  their  solemn  obli- 
gations and  contracts.  But  on  a  re-exami- 
nation of  the  authorities,  we  see  nothing 
to  raise  a  doubt  that  the  law,  as  it  now 
stands,  is  correctly  declared  in  that  case 

'•  It  was  urged  that  the  terms  '  void  and 
voidable,'  as-  applied  to  the  deed  of  a  per- 
son non  compos,  do  not  express  the  true 
distinction,  but  that  there  may  be  an  inter- 
mediate class  of  deeds  confirmable,  that  is, 
deeds  made  by  one  having  no  capacity  to 
contract,  and  so  void  until  confiimcd  by 
the  party  after  being  restored.  To  say 
nothing  of  the  practical  inconvenience  of 
making  the  operation  of  a  deed  to  transfer 
an  estate  depend  on  some  act,  done  months, 
perhaps  years,  after  it  has  been  delivered 
and  recorded,  some  acceptance  of  payment, 
or  other  act  in  pais,  passing  between   the 


1  Brown  v.  Joddrell,  3  C.  &  P.  30. 

2  Baxter  v.  Earl  of  Port&raouth,  5  B.  &  C.  170 ;  7  D.  &  R.  614,  S.  C. :  2  C.  &  P. 
178  S.  C. 


PART  IV.J 


INSANITY. 


327 


§  370.  On  the  other  liand,  insanity  of  mind  is  generally  ad- 
mitted, as  a  valid  bar  to  an  action  upon  an  executory  contract  of 
the  party ;  ^  though  in  England  it  has  in  some  cases  been  held  in- 
sufficient as  a  defence,  per  se,  but  admissible  evidence  to  support  a 
defence  grounded  upon  undue  advantage  taken,  or  fraud  practised 
upon  the  party,  by  reason  of  his  want  of  common  discernment.^ 

§  371.  The  state  and  condition  of  mind  of  the  party  is  proved, 
like  other  facts,  to  the  jury ;  and  evidence  of  the  state  of  his  mind, 
both  before  and  after  the  act  done,  is  admissible.^    An  inquisition, 


parties  without  record  or  other  means  of 
notoriety  ;  it  would  afford  no  more  means 
of  security  to  the  rights  of  the  party  under 
disability  than  the  power  of  refusinj^  to 
ratify  and  actually  disaffirming  the  deed, 
when  the  powers  of  his  mind  and  his  dis- 
posing capacity  are  fully  restored.  We 
are  therefore  of  opinion  that  the  deed  of  the 
plaintiff,  made  whilst  in  an  unsound  state 
of  mind,  was  voidable,  and  not  absolutely 
void,  and,  as  a  necessary  legal  consequence, 
that  it  was  capable  of  being  ratified  and 
confirmed  by  him,  after  his  mind  was  re- 
stored. 

"  The  acts  necessary  to  be  done,  to  affirm 
and  ratify  a  prior  voidable  act,  or  to  annul 
it  and  set  it  aside,  may  be  various,  accord- 
ing to  the  nature  of  the  act  to  be  thus 
affirmed  or  disaffirmed,  and  to  the  condi- 
tion and  capacity  of  the  party  doing  the 
act.  In  Tucker  v.  Moreland,  10  Pet.  58, 
it  was  held  that  in  the  analogous  ca<e  of  an 
infant,  he  might  avoid  his  act,  deed,  or 
contract,  by  different  means,  according  to 
the  nature  of  the  act  or  the  circumstances 
of  the  case.  One  of  the  cases  put  is,  where 
an  infant  makes  a  lease ;  the  receipt  of 
rent,  after  he  comes  of  age,  is  a  ratification. 
Bac.  Ab.  Infancy  and  Age,  I.  8. 

"  In  the  present  case,  after  the  plaintiff 
was  restored  to  the  full  possession  of  his 
reason,  he  found  that  he  had  executed  a 
conveyance  of  his  estate,  that  the  defend- 
ants were  in  possession  under  his  deed  ; 
also,  that  he  held  certain  notes  for  part  of 
the  purchase-money.  His  forbearing  to 
enter,  his  giving  no  notice  of  his  election 
to  disaffirm  the  convoj'ance,  would  be  neg- 
ative acts,  and  perhaps  equivocal ;  but  his 
demanding  and  receiving  payment  of  the 
notes  was  affirmative,  significant,  and  de- 
cisive. It  was  inconsistent  with  any  just 
purpose  to  disaffirm  the  conveyance.  Pay- 
ment and  acceptance  of  the  compensation 
are  decisive  of  an  election  ro  affirm.  But- 
ler V.  Hildreth,  5  Met.  49  ;  Norton  v.  Nor- 
ton, 5  Cush.  530."] 

1  Sentance  v.  Poole,  3  C.  &  P.  1 ;  Stock 
on  Non  Compotes  Mentis,  p.  30  ;  Mitchell 


V.  Kingman,  5  Pick.  431  ;  Seaver  v.  Phelps, 
11  Pick.  304  ;  Chitty  on  Contracts,  p.  112 ; 
Story  on  Contracts,  §§  23,24,25.  [*A 
judgment  recovered  against  a  person  ad- 
mitted at  the  time  to  have  been  non  compos 
mentis,  and  who  had  no  guardian,  will  be  re- 
versed on  a  writ  of  error  brought  by  his  ad- 
ministrator after  his  decease,  unless  per- 
haps for  necessaries.  Leach  v.  Marsh,  47 
Maine,  548.] 

-  Ibid. ;  Dane  v.  Kirkwall,  8  C.  &  P. 
679.  There  is  a  material  difference  between 
insanity  and  idiocy,  in  respect  to  the  evi- 
dence, and  its  effect.  Many  acts  of  busi- 
ness may  be  done  by  a  lunatic,  and  the 
lunacy  not  be  detected  ;  but  it  is  scarcely 
possible  to  predicate  the  same  of  an  idiot, 
or  an  imbecile  person.  Such  acts,  there- 
fore, arc  strong  evidence  on  an  issue  of 
idiocy ;  but  not  on  an  issue  of  insanity. 
Bannatvne  v.  Bannatyne,  16  Jur.  864  ; 
14  Eng'  Law  &  Eq.  R.  581,  590. 

3  Grant  v.  Thompson,  4  Conn.  R.  203. 
Insanity  is  shown  by  tlie  proof  of  acts, 
declarations,  and  conduct,  inconsistent 
with  the  character  and  previous  habits  of 
the  party.  The  opinions  of  the  witnesses 
as  to  the  sanity  or  insanity  of  tlie  person 
are  not  admissible,  unless  they  are  medical 
men,  or  experts.  McCurry  v.  Hooper,  12 
Ala.  R.  823;  [*  Wymau  v.  Gould,  47 
Maine,  159.  So  held  in  Commonwealth  i'. 
Fairbanks,  2  Allen,  511,  though  the  opin- 
ion is  based  upon  the  witness's  own  knowl- 
edge of  facts.  But  in  Cram  ;;.  Cram,  33 
Vt.  15,  it  is  held  that,  when  a  person's 
mental  capacity  is  in  question,  the  opinion 
of  a  non-professional  witness  in  rehition 
thereto,  derived  from  personal  observation 
of,  and  conversation  with,  such  person,  ia 
admissible  in  evidence  in  connection  with 
the  facts  upon  which  the  opinion  is  based.] 
a7ite,  Vol.  1,  §440  ;  [Beavan  y.  McDonnell, 
26  Eng.  Law  &  Eq.  540.  The  rule  of  evi- 
dence, that,  where  insanity  is  proved  or 
admitted  at  any  particular  time,  it  is  pre 
suined  to  continue,  does  not  apply  to  insan- 
ity caused  by  a  violent  disease.  Mix  v. 
Whittemore,  4  Met.  545.] 


828  LAW   OF  EVIDENCE.  [PART  IV. 

taken  under  a  commission  of  lunacy,  is  admissible  evidence,  but 
not  conclusive  in  the  ^rty's  own  favor.^  It  has,  however,  been 
held  conclusive  against  other  persons,  subsequently  dealing  with 
the  lunatic,  instead  of  dealing  with  his  guardian,  who  seek  collat- 
erally to  avoid  the  guardian's  authority,  by  showing  that  the  luna- 
tic has  been  restored  to  his  reason.^  Insanity,  once  proved  to  have 
existed,  is  presumed  to  continue,  unless  it  was  accidental  and  tem 
porary  in  its  nature ;  as,  where  it  was  occasioned  by  the  violence  of 
disease.^ 

§  371  a.  What  constitutes  insanity  of  mind  is  a  question  which 
has  been  very  much  discussed,  especially  of  late  years  ;  and  the 
opinions  of  learned  judges  seem  at  first  view  to  be  conflicting. 
But  much  of  the  apparent  discrepancy  may  be  reconciled,  by  ad- 
verting to  the  nature  of  the  cases  respectively  in  judgment.  The 
degree  of  unsoundness  or  imbecility  of  mind  sufficient  to  invalidate 
the  acts  of  the  party  in  some  cases  may  not  suffice  in  others.  Bat 
in  regard  to  insanity,  where  there  is  no  frenzy  or  raving  madness, 
the  legal  and  true  character  of  the  disease  is  delusion,  or,  as  the 
physicians  express  it,  illusion  or  hallucination.  And  this  insane 
delusion  consists  in  a  belief  of  facts  which  no  rational  person  would 
believe.^  It  is  distinguished  from  7noral  insanity,  which  consists 
in  the  perversion  or  disordered  state  of  the  affections  or  moral 
powers  of  the  mind,  in  contradistinction  to  the  powers  of  the  un- 
derstanding or  intellect.  This  latter  state  of  the  mind  is  held  not 
sufficient  to  invalidate  a  will,  unless  it  is  accompanied  by  that  de- 
lusion in  matters  of  fact  which  is  the  test  of  legal  insanity.^ 

§  372.  In  criminal  cases,  in  order  to  absolve  the  party  from 
guilt,  a  higher  degree  of  insanity  must  be  shown  than  would  be 
sufficient  to  discharge  him  from  tlie  obligations  of  his  contracts. 
In  these  cases,  the  rule  of  law  is  understood  to  be  this :  that,  "  a 
man  is  not  to  be  excused  from  responsibility,  if  he  has  capacity 
and  reason  sufficient  to  enable  him  to  distinguish  between  right 
and  wrong,  as  to  the  particular  act  he  is  then  doing  ;  a  knowledge 

1  Faulder  v.  Silk,  3  Campb.  126  ;  Dane  ^  Ibid. ;  Frere  v.  Peacockc,  1  Rob.  Ecd. 
t;.  Kirkwall,  8  C.  &  P.  679.  R.  442, 445.     And  see  PrlKdiard  on  Iiisan- 

2  Leonard  v.   Leonard,   14   Pick.   280;  ity  in  relation  to  Jurisprudence,  pp.  16,  19, 
an<c,  Vol.  1,  §§  551,  5.56.  30.      CominonweaUh   v.   Mosler,   4   Parr, 

^  Sec  rt?i^e,  Vol.  1,§42;  Hix  w.  Whittc-  264.     See  further,   as   to  inonoinanla,  ante, 

more,  4  Met.  545;  1  Collinson  on  Lunacy,  Vol.  1,§365  ;  Rei^ina  v.  Hill,  15Jur.  470; 

55;    Slielford   on   Lunatics,   275  ;    Swin-  5  Eng.  Law  &  Eq.  R.  547  ;  5  (,'ox,  Cr.  C. 

bumc  on  Wills,  Part  II.  §  iii.  5,  6,  7  ;  I  259,  S.  C. ;    Warinjr  v.   Warinci-,   12  Jur 

Hal.  P.  C.  30.  947,  Priv.  C. ;  Best's  Prin.  of  Ev.  §  134 

*  Dew  V.  Clark,  3  Addams,  Eccl.  R.  79.  \jwst,  §  689.] 


PART  IV.J  INSANITY.  329 

and  consciousness  that  the  act  he  is  doing  is  wrong  and  criminal, 
and  will  subject  him  to  punishment.  In^rder  to  be  responsible, 
he  must  have  sufficient  power  of  memory  to  recollect  the  relation 
in  which  he  stands  to  others  and  in  which  others  stand  to  him  ; 
that  the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  justice 
and  right,  injurious  to  others,  and  a  violation  of  the  dictates  of 
duty.  On  the  contrary,  although  he  may  be  laboring  under  par- 
tial insanity,  if  he  still  understands  the  nature  and  character  of  his 
act  and  its  consequences,  if  he  has  a  knowledge  that  it  is  wrong 
and  criminal,  and  a  mental  power  sufficient  to  apply  that  knowl- 
edge to  his  own  case,  and  to  know  that  if  he  does  the  act  he  will 
do  wrong  and  receive  punishment,  siich  partial  insanity  is  not 
sufficient  to  exempt  him  from  responsibility  for  criminal  acts.  If 
then  it  is  proved  to  the  satisfaction  of  the  jury,  that  the  mind  of 
the  accused  was  in  a  diseased  and  unsound  state,  the  question  will 
be,  whether  the  disease  existed  to  so  high  a  degree,  that,  for  the 
time  being,  it  overwhelmed  the  reason,  conscience,  and  judgment, 
and  whether  the  prisoner,  in  committing  the  homicide,  acted  from 
an  irresistible  and  uncontrollable  impulse ;  if  so,  then  the  act  was 
not  the  act  of  a  voluntary  agent,  but  the  involuntary  act  of  the 
body  without  the  concurrence  of  a  mind  directing  it."  ^ 

1  See  The  Trial  of  Abner  Rogers,  pp.  a  man  can  be  justly  punished,  it  must  ap- 

276,  277,  per  Shaw,  C.  J.     The  whole  of  pear  that  he  knew  "that  the  act  was  contra- 

this  lucid  exposition  of  the  Criminal  Law  ry  to  the  law  of  the  land.     But  the  law  as- 

of  Insanity,  by  the  learned  chief  justice,  sumes  that  every  man  has  knowledge  of  the 

was  as  follows  :  "  The  great  object  of  pun-  laws   jirohibiting   crimes;   an   assumption 

ishment  by  law  is  to  afford  security  to  the  not  strictly  true  in  fixct,  but  necessary  to 

community  against  crimes,  by  punishing  the  security  of  society,  and  sufficiently  near 

those  who  violate  the  laws  ;  and  this  ob-  the  truth  for  practical  purposes.     It  is  ex- 

ject   is  accomplished    by  holding    out  the  pressed  by  the  well-known  maxim,  ignoran- 

fear  of  punishment,  as   the  certain  conse-  tia  legis  neminem  excusai, — ignorance   of 

quences  of  such  violation.     Its  effect  is  to  the  law  cannot  be  pleaded  as  an  excuse  for 

present  to   the  minds   of  those   who  are  crime.     The  law  assumes  the  existence  of 

tempted  to  commit  crime,  in  order  to  some  the  power  of  conscience  in  all  persons  of 

present  gratification,  a  strong  counteract-  ordinary  intelligence  ;  a  capacity  to  distin- 

ing  motive,  in  the  fear  of  punishment.  guish  between  right  and  wrong,  in  refer- 

"But  this  object  can  only   be   accom-  ence  to  particular  actions  ;  a  sense  of  duty 

plished  when  such  motive  acts  on  an  intel-  and  of  right.    It  may  also  be  safely  assumed 

ligent  being,  capable  of  remembering  that  that  every  man    of  ordinary   intelligence 

the  act   about  to  be  committed  is  wrong,  knows   that    the   laws   of  society   are   so 

contrary  to  duty,  and  such  as  in  any  well-  framed   and   administered   as   to  prohibit 

ordered  society  would  subject  the  offender  and  punish  wrong  acts,  violations  of  duty 

to  punishment.    It  might,  in  some  respects,  towai'ds  others,  by  penalties  in  some  meas- 

be   more  accurate   to   say,  that  the  party  ure  adapted  to  the  nature  and  aggravation 

thus  acting  under  a  temptation,  must  have  of  the  wrong  and  injurious  acts  thus  done, 

memory  and  intelligence,  to  recollect  and  If,  tlierefore,  it  happens  to  be  true  in  any 

know  that  the  act  he  is  about   to  commit  particular  case,  that  a  person,  tempted  to 

is  a  violation  of  the  law  of  the  land.     But  commit  a  crime,  does  not  know  that  the 

this  mode  of  stating  the  rule  might  lead  to  particular  act  is  contrary  to  positive  law, 

a  mistake  of  another  kind,  inasmuch  as  it  or  what  precise  punishment  the  nuinicipal 

would  seem  to  hold  up  the  idea,  that  before  law  annexes  to  such  act ;  yet  if  the  act  is 


830 


LAW   OF  EVIDENCE. 


[part  IV. 


§  373.   In  all  such  cases,  the  jury  are  to  be  told  that  every  man 
is  to  be  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of 


palpably  wrong  in  itself,  if  it  be  manifestly 
injurious  to  the  rights  of  another,  as  by 
destroying  his  life,  maiming  his  person, 
taking  away  his  property,  breaking  into  or 
burning  his  dwelling-house,  and  the  like, 
there  is  no  injustice  in  assuming  that  every 
man  knows  that  such  acts  are  wrong,  and 
must  subject  him  to  punishment  by  law ; 
and  therefore  it  may  be  assumed,  for  all 
practical  purposes,  and  without  injustice, 
that  he  knows  the  act  is  contrary  to  law. 
This  is  the  ground  upon  wliich  the  rule 
has  been  usually  laid  down  by  judges, 
when  the  question  is,  whetlier  a  person  has 
sufficient  mental  capacity  to  be  amenable 
for  the  commission  of  a  crime ;  that  he 
must  iiave  sufficient  mental  capacity  to  dis- 
tinguish between  right  and  wrong,  as  ap- 
plied to  the  act  he  is  about  to  commit,  and 
to  be  conscious  that  the  act  is  wrong ;  in- 
stead of  saying  that  he  must  have  sufficient 
capacity  to  know  that  it  is  contrary  to  the 
law  of  the  land ;  because  this  power  to 
distinguish  between  right  and  wrong,  as 
applied  to  the  particular  act,  —  a  power 
whicli  every  human  being  who  is  at  the 
same  time  a  moral  agent  and  a  subject  of 
civil  government  is  assumed  to  possess,  — 
is  the  medium  by  which  the  law  assumes 
that  he  knows  that  the  same  act  which  is 
a  violation  of  high  moral  duty  is  also  a 
violation  of  the  law  of  the  land.  Whereas, 
if  it  were  stated  that  a  person  must  have 
sufficient  mental  capacity  to  know  and  un- 
derstand that  the  act  ho  is  about  commit- 
ting is  a  violation  of  the  law  of  tlie  land, 
it  miglit  lead  to  a  wrong  conclusion,  and 
r.aise  a  doubt  in  regard  to  persons  ignorant 
of  the  law.  There  is  no  doubt  that  many 
a  man  is  held  responsible  for  crime,  and 
that  rightfully,  who  might  not  know  that 
the  act  he  was  about  committing  was  con- 
trary to  the  law  of  the  land,  otherwise  than 
as  a  moral  being  he  knows  that  it  is  wrong, 
a  violation  of  the  dictates  of  his  own  natu- 
ral sense  of  right  and  wrong. 

"  To  recur,  then,  to  what  has  been  al- 
ready stated :  In  order  that  punishment 
may  operate  by  way  of  example,  to  deter 
others  from  committing  criminal  acts, 
when  under  temptation  to  do  so,  by  pre- 
senting a  strong  counteracting  motive,  the 
person  tempted  must  have  memory  and  in- 
telligence, to  know  that  the  act  he  is  about 
to  commit  is  wrong,  to  remember  and  un- 
derstand, that,  if  he  commits  the  act,  he 
will  lie  subject  to  tin;  punishment,  and 
reason  and  will  to  enal)le  him  to  compare 
and  choose  between  the  sujiposed  advan- 
tage or  gratification  to  be  obtained  by  the 
criminal  act,  and  the  immunity  from  pun- 


ishment which  he  will  secure  by  abstaining 
from  it. 

"  A  person,  therefore,  in  order  to  be 
punishable  by  law,  or  in  order  that  his 
punishment  by  law  may  operate  as  an  ex- 
ample to  deter  others  from  committing 
criminal  acts,  under  like  circumstances, 
must  have  sufficient  memory,  intelligence, 
reason,  and  will  to  enable  him  to  distin- 
guish between  riglit  and  wrong,  in  regard 
to  the  particular  act  about  to  be  done,  to 
know  and  understand  that  it  will  be  wrong, 
and  that  he  will  deserve  punishment  by 
committing  it. 

"  This  is  necessary  on  two  grounds:  — 

"  1  St.  To  render  it  jitst  and  reasonable 
to  inflict  the  punishment  on  the  accused 
individual ;  and 

"  2d.  To  render  his  punishment,  by  way 
of  example,  of  any  utility  to  deter  others 
in  like  situation  from  doing  similar  acts, 
by  holding  up  a  counteracting  motive  in 
the  dread  of  punishment,  which  they  can 
feel  and  comprehend." 

Witti  more  immediate  reference  to  the 
case,  the  chief  justice  proceeded  as  fol- 
lows :  — 

"  In  order  to  constitute  a  crime,  a  man 
must  have  intelligence  and  capacity 
enough  to  iiave  a  criminal  intent  and  pur- 
pose ;  and  if  his  reason  and  mental  pow- 
ers are  either  so  deficient  that  he  has  no 
will-,  no  conscience,  or  controlling  mental 
power,  or  if,  through  the  overwhelming 
violence  of  mental  disease,  his  intellectual 
power  is  for  the  time  obliterated,  he  is  not 
a  responsible  moral  agent,  and  is  not  pun- 
ishable for  criminal  acts. 

"  But  these  are  extremes  easily  distin- 
guished, and  not  to  be  mistaken.  The 
difficulty  lies  between  these  extremes,  in 
the  cases  of  partial  insanity,  where  the 
mind  may  be  clouded  and  weakened,  but 
not  incapable  of  remembering,  reasoning, 
and  judging,  or  so  perverted  liy  insane  de- 
lusion as  to  act  under  false  impressions  and 
influences.  In  these  cases,  the  rule  of  law, 
as  we  understand  it,  is  tliis  :  [Here  follows 
the  passage  already  quoted  in  the  text.] 

"  The  cliaracter  of  the  mental  disease 
relied  upon  to  excuse  tlie  accused  in  this 
case  is  partial  insanity,  consisting  of  mel- 
ancholy, accompanied  by  delusion.  The 
conduct  may  be  in  many  respects  regular, 
the  mind  acute,  and  tlie  conduct  apparent- 
ly governed  liy  rules  of  pro])ricty,  and  at 
the  same  time  there  may  be  insane  delu 
sion  by  whicli  the  mind  is  perverted.  The 
most  common  of  these  cases  is  that  of 
monomania,  when  the  mind  broods  over 
one  idea  and  cannot  be  reasoned  out  of  it 


PART  IV.] 


INSANITY. 


331 


reason  to  be  responsible  for  his  crimes,  until  the  contrary  be  proved 
to  their  satisfaction  ;  and  that,  to  establish  a  defence  on  the  ground 
of  insanity,  it  must  be  clearly  proved  that,  at  the  time  of  commit- 
ting the  act,  the  party  accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that  he  did 
not  know  he  was  doing  what  was  wrong.^  The  mode  of  putting 
the  latter  part  of  the  question  to  the  jury  on  these  occasions  has 
generally  been,  whether  the  accused,  at  the  time  of  doing  the  act, 
knew  the  difference  between  right  and  wrong ;  which  mode, 
though  rarely,  if  ever,  leading  to  any  mistake  with  the  jury,  is  not 
deemed  so  accurate  when  put  generally  and  in  the  abstract,  as 
when  put  with  reference  to  the  party's  knowledge  of  right  and 
wrong  in  respect  to  the  very  act  with  which  he  is  charged.^ 


This  may  operate  as  an  excuse  for  a  crim- 
inal act  in  one  or  two  modes :  Eitlier  the 
dehision  is  snch  that  the  person  under  its 
influence  has  a  real  and  firm  belief  of  some 
fact,  not  true  in  itself,  but  wliich,  if  it  were 
true,  would  excuse  his  act ;  as  where  the 
belief  is  that  the  party  killed  had  an  im- 
mediate design  upon  his  life,  and  under 
that  belief  the  insane  man  killed  him  in 
6up])osed  self-defence.  A  common  instance 
is  where  he  fully  believes  that  the  act  he  is 
doing  is  done  by  the  immediate  command 
of  God,  and  he  acts  under  the  delusive  but 
sincere  belief  that  what  he  is  doing  is  by 
the  command  of  a  sujjcrior  power,  which 
supersedes  all  human  laws,  and  the  laws 
of  nature ;  or 

"  2d.  This  state  of  delusion  indicates  to 
an  experienced  person  that  the  mind  is  in 
a  diseased  state,  that  the  known  tendency 
of  that  diseased  stite  of  the  mind  is  to 
break  out  into  sudden  paroxysms  of  vio- 
lence, venting  itself  in  acts  of  homicide, 
or  other  violent  acts,  toward  friend  or  foe 
indiscriminately,  so  that,  although  there 
were  no  previous  indications  of  violence, 
yet  the  subsequent  act,  connecting  itself 
with  the  previous  symptoms  and  indica- 
tions, will  enable  an  experienced  person  to 
say  that  the  outbreak  was  of  such  a  char- 
acter that,  for  the  time  being,  it  must  have 
overborne  memory  and  reason ;  that  the 
act  was  the  result  of  the  disease,  and  not 
of  a  mind  capable  of  choosing ;  in  short, 
that  it  was  the  result  of  imcontroUable 
impulse,  and  not  of  a  person  acted  upon 
by  motives,  and  governed  by  the  will."  Id. 
pp.  273  -  279.  This  case  is  reported  in  a 
more  condensed  form  in  7  Met.  500.  The 
test  of  insanity  is  delusion.  See  Freer  v. 
Peacocke,  1 1  Jar.  247 ;  Commonwealth  v. 


Mosler,  4  Barr,  264  ;  The  State  v.  Spicer, 
3  Amer.  Law  Journ.  128,  N.  S. 

[*i  In  Loeffner  v.  State,  10  Ohio  St. 
598,  and  in  Fisher  v.  People,  23  111.  283,  it 
is  held  that  insanity  need  not  be  established 
beyond  a  reasonable  doubt ;  it  is  enough 
if  the  jury  be  reasonably  satisfied  by  the 
weight  or  preponderance  of  the  evidence.] 

'^  Per  Tindal,  C.  J.,  in  McNashten's 
Case,  10  Clark  and  Fin.  210.  In  that  case 
the  following  questions  were  propounded 
to  the  learned  judges  by  the  House  of 
Lords  :  — 

"  1st.  What  is  the  law  respecting  alleged 
crimes,  committed  by  persons  afHicted  with 
insane  delusion  in  respect  of  one  or  more 
particular  subjects  or  persons ;  as,  for  in- 
stance, where  at  the  time  of  the  commis- 
sion of  the  alleged  crime,  the  accused 
knew  he  was  acting  contrary  to  law,  but 
did  the  act  complained  of  with  a  view,  un- 
der the  influence  of  insane  delusion,  of 
redresr^^ing  or  avenging  some  supposed 
grievance  or  injury,  or  of  producing  some 
supposed  public  benefit  ? 

"  2d.  What  are  the  proper  questions  to 
be  submitted  to  the  jury,  when  a  person 
alleged  to  be  afflicted  with  insane  delusion 
respecting  one  or  more  particular  subjects 
or  persons  is  charged  with  the  commission 
of  a  crime  (murder,  for  example),  and  in- 
sanity is  set  up  as  a  defence  ? 

"  3d.  In  what  terms  ought  the  question 
to  be  left  to  the  jury,  as  to  the  prisoner's 
state  of  mind  at  the  time  when  the  act  was 
committed  1 

"  4th.  If  a  person,  under  an  insane  de- 
lusion as  to  existing  facts,  commits  an  of- 
fence in  consequence  thereof,  is  he  thereby 
excused  ? 

"  5tli.  Can  a  medical  man,  conversant 


332 


LAW  OF  EVIDENCE. 


[part  IV. 


§  874.   In  regard  to  drunkenness,  it  is  now  settled,  that  incapaci- 
ty from  that  cause  is  a  valid  defence  to  an  action  upon  the  contract 


with  the  disease  of  insanity,  who  never 
Baw  the  prisoner  previous  to  the  trial,  but 
who  was  present  during  the  whole  trial 
and  the  examination  of  all  the  witnesses, 
be  asked  his  opinion  as  to  the  state  of  the 
prisoner's  mind  at  the  time  of  the  commis- 
sion of  the  alleged  crime,  or  his  opinion 
whether  the  prisoner  was  conscious,  at  the 
time  of  doing  the  act,  that  he  was  acting 
contrary  to  law  ;  or  whether  he  was  labor- 
ing undar  any  and  what  delusion  at  the 
time  ? " 

The  joint  opinion  of  all  the  judges,  ex- 
cept Mr.  Justice  Maule,  was  delivered  by 
Lord  Chief  Justice  Tindal,  as  follows : 
"  My  Lords,  her  Majesty's  judges,  with 
the  exception  of  Mr.  Justice  Maule,  who 
has  stated  his  opinion  to  your  Lordships, 
in  answering  the  questions  proposed  to  them 
by  your  Lordships'  House,  think  it  right 
in  the  first  place  to  state,  that  they  have 
forborne  entering  into  any  particular  dis- 
cussion itpon  these  questions,  from  the  ex- 
treme and  almost  insuperable  difficulty  of 
applying  those  answers  to  cases  in  which 
the  facts  are  not  brought  judicially  before 
them.  The  facts  of  each  particular  case 
must  of  necessity  present  themselves  with 
endless  variety,  and  with  every  shade  of 
difference  in  each  case,  and  it  is  their  duty 
to  declare  the  law  upon  each  particular 
case,  on  facts  proved  before  them,  and  after 
hearing  arguments  of  counsel  thereon. 
They  deem  it  at  once  impracticable,  and  at 
the  same  time  dangerous  to  the  adminis- 
tration of  justice  if  it  were  practicable,  to 
attempt  to  make  minute  applications  of  the 
principles  involved  in  the  answers  given 
them  by  your  Lordships'  questions ;  they 
have  theicfore  confined  their  answers  to 
the  statements  of  that  which  they  hold  to 
be  the  law  upon  the  abstract  questions 
proposed  by  your  Lordships  ;  and  as  they 
deem  it  unnecessary  in  this  particular  case 
to  deliver  their  opinions  seriatim,  and  as  all 
concur  in  the  same  opinion,  they  desire  me 
to  express  such  their  unanimous  opinion 
to  your  Lordships.  In  answer  to  the  first 
question,  assuming  tliat  your  Lordships' 
inquiries  are  confined  to  tiiose  persons  who 
labor  under  sucii  partial  delusions  only, 
and  are  not  in  other  respects  insane,  we 
are  of  opinion,  that,  notwithstanding  the 
party  accu.sed  did  the  act  complained  of, 
with  a  view,  under  the  infiuence  of  insane 
delusion,  of  redressing  or  avenging  some 
supposed  grievance  or  injury,  or  producing 
eomc  public  benefit,  he  is  nevertheless  pun- 
ishable, according  to  the  nature  of  the 
crime  committed,  if  he  knew  at  the  time  of 
committing  such  crime  that  be  was  acting 


contrary  to  law,  —  by  which  expression  we 
understand  your  Lordships  to  mean  the  law 
of  the  land.  As  the  third  and  fourth 
questions  appear  to  us  to  be  more  conven- 
iently answered  together,  we  have  to  sub- 
mit our  opinion  to  be,  that  the  jury  ought 
to  be  told,  in  all  cases,  that  every  man  is  to 
be  presumed  to  be  sane,  and  to  possess  a 
sufficient  degree  of  reason  to  be  responsi- 
ble for  his  crimes,  until  the  contrary  be 
proved  to  their  satisfaction ;  and  that  to 
establish  a  defence  on  the  ground  of  in- 
sanity, it  must  be  clearly  pi'oved,  that,  at 
the  time  of  committing  the  act,  the  party 
accused  was  laboring  under  such  a  defect 
of  reason,  from  disease  of  the  mind,  as  not 
to  know  the  nature  and  quality  of  the  act 
he  was  doing  ;  or,  if  he  did  know  it,  that 
he  did  not  know  he  was  doing  what  was 
wrong.  The  mode  of  putting  the  latter 
part  of  the  question  to  the  jnry  on  these 
occasions  has  generally  been,  whether  the 
accused,  at  the  time  of  doing  the  act,  knew 
the  difference  between  right  and  wrong; 
which  mode,  thougii  rarely  if  ever  leading 
to  any  mistake  with  the  jury,  is  not,  as  we 
conceive,  so  accurate  when  put  generally 
and  in  the  abstract,  as  when  put  with  ref 
erence  to  the  party's  knowledge  of  right 
and  wrong  in  respect  to  the  very  act  with 
which  he  is  charged.  If  the  question  were 
to  be  put  as  to  the  knowledge  of  the  ac- 
cused solel}'  and  exclusively  witii  reference 
to  the  law  of  the  land,  it  might  tend  to 
confound  the  jury,  by  inducing  them  to 
believe  tliat  an  actual  knowledge  of  the  law 
of  the  land  was  essential  in  order  to  lead 
to  a  conviction ;  whereas  the  law  is  ad- 
ministered upon  the  principle  that  every 
one  must  be  takcy  conclusively  to  know  it, 
witliout  proof  that  he  does  know  it.  If  the 
accused  were  conscious  that  the  act  was 
one  which  he  ought  not  to  do,  and  if  that 
act  was  at  the  same  time  contrary  to  the 
law  of  the  land,  he  is  punishable,  and  the 
usual  course,  therefore,  has  been  to  leave 
the  question  to  the  jury,  whether  the  par- 
ty accused  had  a  sufficient  degree  of  rea- 
son to  know  that  he  was  doing  an  act  that 
was  wrong ;  and  this  course,  we  think,  is 
correct,  accompanied  with  such  observa- 
tions and  explanations  as  the  ciicumstanccs 
of  each  particular  case  may  rc([nire.  The 
answer  to  the  fourth  question  must  of 
course  depend  on  the  nature  of  the  delu- 
sion ;  but  making  the  same  assumption 
as  we  did  before,  namely,  that  he  labors 
under  such  partial  delusion  only,  and  is 
not  in  other  respects  insane,  we  think  he 
must  be  considered  in  the  same  situation, 
as  to  responsibility,  as  if  the  facts  with  re- 


PART  IV.] 


INSANITY. 


333 


of  the  party,  made  while  under  its  influence,  as  well  where  it  was 
voluntary,  and  by  the  fault  of  the  defendant,  as  where  it  was  caused 
by  the  fraud  or  procurement  of  the  plaintiff.^  In  criminal  cases, 
though  insanity,  as  we  have  just  seen,  is  ordinarily  an  excuse,  yet 
an  exception  to  this  rule  is  when  the  crime  is  committed  by  a  party 
while  in  a  fit  of  intoxication  ;  the  law  not  permitting  a  man  to 
avail  himself  of  the  excuse  of  his  own  gross  vice  and  misconduct, 
to  shelter  himself  from  the  legal  consequences  of  such  crime.  But 
the  crime,  to  be  within  the  exception,  and  therefore  punishable, 
must  take  place  and  be  the  immediate  result  of  the  fit  of  intoxica- 
tion, and  while  it  lasts,  and  not  the  result  of  insanity,  remotely  oc- 
casioned by  previous  habits  of  gross  indulgence  in  spirituous  liq- 
uors. The  law  looks  to  the  immediate  and  not  the  remote  cause  ; 
to  the  actual  state  of  the  party,  and  not  to  the  causes  which  remote- 
ly produced  it.^ 


spect  to  which  the  delusion  exists  were 
real.  For  example,  if,  under  the  influence 
of  delusion,  he  supposes  another  man  to  be 
in  the  act  of  attempting  to  take  away  his 
life,  and  he  kills  that  man,  as  he  supposes, 
in  self-defence,  he  would  be  exempt  from 
punishment.  If  his  delusion  was,  that  the 
deceased  had  inflicted  a  serious  injury  to 
his  character  and  fortune,  and  he  killed 
him  in  rcventre  for  such  supposed  injury, 
he  would  be  liable  to  punishment.  In  an- 
swer to  the  last  question,  we  state  to  j'our 
Lordships,  that  we  think  the  medical  man, 
under  the  circumstances  supposed,  cannot 
in  strictness  be  asked  his  opinion  in  the 
terms  above  stated,  because  each  of  these 
questions  involves  the  determination  of  the 
truth  of  the  facts  deposed  to,  which  it  is 
for  the  jury  to  decide  ;  and  the  questions 
are  not  mere  questions  upon  a  matter  of 
science,  in  which  case  such  evidence  is  ad- 
missible. But  where  the  facts  are  admit- 
ted, or  not  disputed,  and  the  question  be- 
comes substantially  one  of  science  only,  it 
may  be  convenient  to  allow  the  question  to 
be  put  in  that  general  form,  though  the 
same  cannot  be  insisted  on  as  a  matter  of 
right."  Ibid.  200-212.  [*As  to  the 
proof  of  insanity  with  reference  to  the  ex- 
ecution of  wills,  see  1  Redfield  on  Wills,  31 
-51.  [See  also  United  States  v.  Shultz, 
6  McLean,  121  ;  People  v.  Sprague,  2 
Parker,  Cr.  E.  (N.  Y.)  43;  People  v. 
Robinson,  1  lb.  649 ;  United  States  v. 
M'Glue,  1  Curtis,  Ct.  Ct.  1;  McAllister 
V.  State,  17  Ala.  434.] 

1  Chitty  on  Contracts,  p.  112  (4th  Am. 
ed.)  ;  Story  on  Contracts,  §  27,  and  cases 
there  cited. 

*  United  States  v.  Drew,  5  Mason,  R. 


28,  per  Story,  J. ;  1  Russell  on  Crimes,  pp. 
7,  8  (3d  ed.).  See  Ray  on  the  Medical 
Jurisprudence  of  Insanity,  ch.  24.  In  the 
Jurisprudence  of  Continental  Europe, 
drunkenness  is  generally  distinguished  into 
three  kinds, —  (I.)  Intentional,  voluntarily 
induced  in  order  to  the  commission  of  a 
crime  while  in  that  state; — (2.)  Culpable, 
by  drinking  without  any  intention  to  be- 
come drunken,  but  where  the  party  might 
easily  have  foreseen  that  he  would  natu- 
rally become  so;  —  (3.)  Inculpable,  where 
such  consequence  could  not  easily  have 
been  foreseen,  or  where  the  party  took  due 
precautions  against  any  injurious  effects, 
as  by  directing  his  servants  to  confine  him 
if  he  should  become  diunk,  or  where  the 
drunkenness  was  justly  attributable  to 
others,  or  was  the  result  of  disease.  In 
the  first  case,  it  is  no  excuse  ;  in  the  second 
it  reduces  the  degree  of  criminality  and 
mitigates  the  punishment;  in  the  third, 
the  lial)ility  to  punishment  ceases.  See 
Professor  Mittermaier's  learned  Treatise 
on  the  Effect  of  Drunkenness  upon  Crimi- 
nal Responsibility,  §§  vi.  vii.  viii.  ix. 

[In  Commonwealth  ».  Hawkins,  3  Gray, 
466,  which  was  an  indictment  for  murder, 
the  jury  were  thus  instructed  :  "  The  rule 
of  law  is  that,  although  the  use  of  intoxi- 
cating liquors  does  to  some  extent  blind 
the  reason  and  exasperate  the  passions, 
yet,  as  a  man  voluntarily  brings  it  upon  him- 
self, he  cannot  use  it  as  an  excuse  or  jus 
tification  or  extenuation  of  crime.  A  man 
because  he  is  intoxicated,  is  not  deprived 
of  any  legal  advantage  or  protection  ;  but 
he  cannot  avail  himself  of  his  intoxication 
to  exempt  him  from  any  legal  responsibili- 
ty which  would  attach  to  him  if  sober."l 


334  LAW   OF  EVIDENCE.  [PART  IV 


INSURANCE. 

[•§  375.  Ordinary  subjects  of  contract  of  insurance. 

376.  Allegations  to  be  proved  in  an  action  on  a  policy  of  insurance,  whatever  ths 

subject. 

377.  First  step  in  trial  is  the  proof  of  the  policy  ;  how  proved. 

378.  PlaintifTs  interest  next  to  be  proved.     Competent  evidence  of  same. 

379.  Not  material  whether  assured's  interest  be  legal  or  equitable. 

380.  Assured's  interest  in  the  goods  proved  by  any  of  the  usual  mercantile  doc- 

uments of  title. 
381."  In  case  of  an  open  policy,  value  of  plaintiffs  interest  must  be  proved  aliunde. 
A  valued  policy,  prima  facie  evidence  of  value  of  property  insured. 

382.  Inception  of  the  risk  proved  by  any  competent  evidence  that  the  ship  actually- 

sailed  within  a  reasonable  time  upon  the  voyage  intended. 

383.  Express  warranties  and  affirmative  averments  are  in  the  nature  of  conditions 

precedent,  and  must  be  strictly  proved. 

384.  Compliance  with  warranty  to  sail  with  convoy,  how  proved. 

385.  Plaintiff  must  prove  the  property  insured  was  lost  immediately  by  a  peril 

insui-ed  against. 

386.  Loss  of  ship  may  be  proved  by  circumstances  inconsistent  with  her  safety. 

387.  Peril  insured  against  must  be  proved  to  have  been  the  immediate  cause  of  loss. 

388.  Loss  by  capture  proved  by  first  showing  capture  in  fact  and  then  sentence  of 

condemnation. 

389.  If  the  voyage  was  protected  by  a  license,  this  must  be  proved. 

390.  What  constitutes  barratry,  and  how  proved. 

391.  Stranding,  how  proved. 

392.  Shipwreck  not  necessarily  a  total  loss.     Constructive  total  loss,  how  proved. 

393.  An  adjustment,  prima  facie  evidence  of  all  the  facts  necessary  to  entitle  the 

assured  to  recover  on  the  policy. 

394.  Provision  requiring  preliminary  proof  of  loss  certain  number  of  days  before 

payment  liberally  construed.     Strictly  legal  proof  not  required. 

395.  Two  classes  of  specific  defences. 

396.  Misrepresentation  injuring   the  underwriter,   whether  made  innocently  or 

fraudulently,  avoids  policy.     Sufficient  if  it  be  substantially  true. 

397.  Assured  not  bound  to  state  his  opinions  or  beliefs  concerning  facts  stated. 

Silence  concerning  material  fact  known  to  the  underwriter,  not  culpable  if 
no  inquiry  is  made. 

398.  Burden  of  proving  fact  concealed  and  its  materiality  is  upon  the  underwriter, 

399.  Warranties  implied  by  law  in  contracts  of  insurance. 

400.  What  is  imported  in  a  warranty  of  seaworthiness.    It  relates  to  the  beginning 

of  the  risk. 

401.  Seaworthiness  presumed. 

402.  Burden  of  proof  is  on  the  underwriter  to  show  violation  of  law. 

403.  What  constitutes  deviation,  and  how  proved. 


PART  IV.] 


INSURANCE. 


335 


404.  General  principles  same  in  case  of  insurance  against  fire  as  in  marine  in- 
surance. 

405.  Actual  ignition  by  fire  must  be  proved.    Plaintiff's  interest  in  property  need 

not  be  absolute,  unqualified,  or  immediate. 

406.  Mistakes  or  misrepresentations  occasioned  by  the  insurers  themselves  do  not 

afl^ect  the  assured. 

407.  Question  for  jury  in  estimating  damages  is  the  actual  loss  of  the  plaintiff. 

Contract  is  one  of  mere  indemnity. 

408.  Defence  of  wilful  burning  by  the  plaintiff  must  be  proved  as  fully  as  would  be 

necessary  to  convict  him  on  an  indictment 

409.  General  principles  in  regard  to  life  insurance  same  as  in  regard  to  fire  and 

marine  insurance.     Sufficient  interest  if  an  indirect  advantage  may  result  to 
the  plaintiff  fi-om  the  life  insured.] 


§  375.  The  ordinary  subjects  of  the  contract  of  Insurance  are 
(1.)  Marine  Risks ;  (2.)  Losses  by  fire ;  (3.)  Lives ;  all  which 
will  be  considered  in  their  order. 

§  376.  Li  an  action  on  a  policy  of  insurance,  whatever  may  be 
the  subject,  the  declaration  ^  contains  the  following   allegations. 


1  The  following  forms  of  counts,  in  the 
simplest  cases  arising  upon  marine  policies, 
establislied  in  Massachusetts,  are  well 
adapted  to  the  brevity  of  modern  practice 
at  common  law  in  any  of  the  United 
States  :  — 

1.  On  a  SHIP,  for  a  total  loss.  "In 
a  plea  of  the  case,  for   that  on ,  the 

f)laintift'  was  owner  of  the  sliip  John,  then 
ying  in  the  harbor  of aforesaid  ;  and 

the   said Company,  in   consideration 

of  a  premium  therefor  paid  to  them  by  the 
plaintiff,  made  a  policy  of  insurance  upon 
the  said  ship  for  a  voyage  from  the  said 

to  Cadiz  in  Spain,  and  at  and  from 

said  Cadiz  to  her  port  of  discharge  in  the 
United  States ;  and  thereby  promised  to 
insure  for  the  plaintiff  ten  thousand  dollars 
upon  the  said  ship  for  the  said  voyage 
against  the  perils  of  the  seas,  and  otlier 
perils  in  the  said  policy  mentioned ;  (a) 
and  the  plaintiff  avers  that  tlie  said  ship 

did    on sail    from    said on    the 

voyage  described  in  said  policy,  and,  whilst 
proceeding  therein,  was,  by  the  perils  of 
the  seas,  wrecked  and  totally  lost ;  of  whicli 

the  said  Insurance  Company,  on ,  had 

notice,  and  were  bound  to  pay  the  same 
on  demand  (or  in  sixty  days)  ;  yet  they 
have  never  paid  the  said  sum  of  ten  thou- 
sand dollars,  though  requested  (or  though 
sixty  days  have  elapsed).  To  the  dam- 
age," &c. 

2.  Count  for  a  partial  loss,  and  for 

CONTRIBUTION  TO  A  GENERAL  AVERAGE. 

[State  the  plaintifTs  interest,  the  voyage, 
and  the  insurance,  as  in  the  last  precedent, 
to  (a),  and  proceed  as  follows  :  — ] 


" and  the  said  Company  did  in  and 

by  the  same  policy  furtlier  promise,  that 
in  case  of  any  loss  or  misfortune  to  the 
said  ship,  it  should  be  lawful  for  the  phiin- 
tiff  and  his  agents  to  labor  for  and  in  the 
defence  and  recovery  of  tlie  said  ship,  and 
that  the  said  Company  would  contribute 
to  the  charges  thereof,  in  proportion  as 
the  said  sum  assured  by  them  should  be  to 
the  whole  sum  at  risk;  and  tlic  plaintiff 

avers,  that  the  said  ship  did,  on ,  sail 

from  said on  the  voyage   aforesaid  ; 

and,  whilst  proceeding  therein,  was,  by 
the  perils  of  the  seas,  dismasted,  and  oth- 
erwise damaged  in  her  hull,  rigging,  and 
appurtenances ;  insomuch  that  it  was  ne- 
cessary, for  tlie  preservation  of  the  said 
ship  and  her  cargo,  to  throw  over  a  part 
of  the  said  cargo ;  and  the  same  was  ac- 
cordingly thrown  over  for  that  purpose; 
by  means  of  all  which,  the  plaintiff  was 
obliged  to  expend  two  thousand  dollars  in 

repairing  the  said  ship  at ,  and  also 

(o?-,  and  is  also  liable  to  pay)  the  sum  of 
five  hundred  dollars  as  a  contribution  to 
and  for  the  loss  occasioned  by  the  said 
throwing  over  of  a  part  of  the  said  cargo ; 
and  the  said  ship  also  suffered  much  dam- 
age that  was  not  repaired  in  said  Cadiz ; 

of  all  which  the  said  Company  on , 

had  notice,  and  became  bound  to  pay  the 
same  in  sixty  days  ;  yet,  though  said  sixty 
days  have  elapsed,  they  have  never  paid 
the  said  sum  of  ten  thousand  dollars,  nor 
any  part  thereof.     To  the  damage,"  &c. 

3.  Count  for  a  total  loss  of  cakgc 
BY  FIRE  "  In  a  plea  of  the  case,  for  that 
on ,  a  certain   brigantine  vailed  The 


336 


LAW   OF  EVIDENCE. 


[part  IV 


which  must  be  proved  by  the  plaintiff,  if  not  admitted  by  the 
pleadings :  —  (1.)  the  policy  ;  (2.)  the  plaintiff's  interest  in  the 
subject  insured,  and  the  payment  of  the  premium ;  (3.)  the 
inception  of  the  risk ;  (4.)  the  performance  of  any  precedent 
condition,  or  warranty,  contained  in  the  policy ;  and  (5.)  the 
loss,  within  the  terms  and  meaning  of  the  policy. 

§  377.  And  first,  as  to  Marine  Insurance.  In  an  action  by 
the  assured,  the  first  step  in  the  trial  is  the  proof  of  the  polia^. 
The  instrument  itself,  being  the  best  evidence,  must  be  produced 
and  proved ;  or  its  loss  must  be  accounted  for,  and  its  contents 
proved  by  secondary  evidence.^  If  it  was  signed  by  another  per- 
son, as  the  agent  of  the  defendant,  his  agency  must  be  proved.^ 
And  proof  of  the  signature  by  an  agent  will  satisfy  an  allegation 
of  signature  by  the  defendant  himself.^  Parol  evidence  of  what 
passed  at  the  time  of  making  the  policy  is,  as  we  have  heretofore 
shown,  inadmissible  to  affect  the  written  agreement.*     But  the 


William  was  lying  at ,  and  the  plain- 
tiff was  the  owner  of  the  cargo  (or  of  cer- 
tain goods),  then  laden  or  about  to  be 
laden  on  boai-d  of  the  said  vessel ;  and  the 
said  C.  D.,  in  consideration  of  a  certain 
premiunx  therefor  paid  to  him  by  the  plain- 
tiff, made  a  certain  policy  of  insurance  in 
writing  upon  the  said  cargo  (or  goods),  at 

and  from   said to   Hamburg,  or  any 

other  port  or  ports  in  the  north  of  Europe, 

and  at  and  from   thence  to  said ,  or 

her  port  of  discharge  in  the  United  States ; 
and  the  said  C.  D.,  by  said  policy,  prom- 
ised to  insure  for  the  plaintifi" dollars 

on  the  said  cargo  (or  goods)  for  the  voy- 
age aforesaid,  against  the  perils  of  fire,  and 
other  perils  in  said  policy  specified  ;  and 
the  plaintiff  avers,  that  the  said  vessel, 
with  the  said  cargo  (or  goods)  on  board, 
did  on sail  from  said on  the  voy- 
age aforesaid  ;  and  afterwards,  during  the 
said  voyage,  whilst  the  said  vessel,  with 
the  said  cargo  on  board,  was  lying  at  the 
port  of  Altona,  in  the  north  of  Europe,  the 
said  cargo  (or  goods)  was  burned,  and 
wholly  destroyed  by  fire,  of  which  the 
said  C.  D.  on  — —  had  notice,  and  became 
bound  to  pay  the  same  in  sixty  days  ;  yet 

he  has  not   paid  the  sum   of dollars 

nor  any  part  thereof.     To  the  damage," 
&c. 
4.  Count  for  a  total  loss  of  freight, 

BY  RESTRAINT,  DETAI  NMENT,  &C.  :    " 

for  that  on the  plaintiff  was  interested 

in  the  freight  of  a  vessel  called  The  George, 
then  bound  on  a  voyage  hereinafter  de- 
scribed ;  and  the  said  Insurance  Company, 
in  consideration  of  a  premium  therefor, 


paid  to  them  by  the  plaintiff,  made  a  pol- 
icy of  insurance  upon  the  said  freight  for 

the  voyage  from to  one  or  more  ports 

beyond  the  Cape  of  Good  Hope,  one  or 
more  times,  for  the  purpose  of  (iisposing 
of  her  outward,  and  procuring  a  return 

cargo,  and  at  and  from  thence  to ,  and 

thereby  promised  to  insure  for  the  plain- 
tiff tiiree  thousand  dollars  upon  the  said 
freight  for  the  voyage  aforesaid,  against 
the  perils  of  enemies,  pirates,  assailing 
thieves,  restraints,  and  detainments  of  all 
kings,  princes,  or  people,  of  what  nation 
or  quality  soever,  and  against  other  perils 
in  the  said  policy  mentioned ;  and  the 
plaintiff  avers,  that  tlie  said  vessel  did  on 

sail   from    said on    the     voyage 

aforesaid,  and  afterwards,  during  said 
voyage,  was  forcibly  taken  on  the  high 
seas  (or,  at  the  Island  of  Sumatra,  in  the 
Indian  Ocean)  by  certain  persons  to  the 
plaintiff  unknown,  and  detained  and  pre- 
vented from  performing  the  said  voyage, 
and  thereby  the  said  freight  \va.s  wholly 
lost  to  the  plaintiff;  of  all  which  the  said 
Insurance  Conipany,"  &c. 

1  Sec  ante,  Vol.  1.  §§  557,  558. 

2  For  the  proof  of  agency,  see  supra,  tit. 
Agency,  §§  59  -  67.  See  also  unte.  Vol. 
1,  §§  416,  417  ;  Brockelbank  v.  Sugrue,  5 
C.  &  P.  21.  Proof  of  a  general  agency  is 
sufiScient  proof  of  autiiority  to  cffeit  insur- 
ance on  behalf  of  the  assured.  Barlow  v 
Leckie,  4  J.  B.  Moore,  8. 

^  See  supra,  tit.  Bills  of  Exchange. 
§  158;  Nicholson  v.  Croft,  2  Burr.  1188. 
4  See  anU,  Vol.  1,  §§  275  -305. 


PART  IV.]  INSURANCE.  337 

general  usage  of  merchants  may  be  shown  to  explain  ambiguities 
or  define  the  terms  of  the  policy,  though  not  to  contradict  its 
plain  language.^  The  general  usage  of  trade,  in  the  city  where 
the  insurance  is  effected,  may  also  be  proved  for  this  purpose ; 
but  not  the  usage  or  practice  in  a  particular  office,  or  among 
a  particular  class  of  underwriters,  where  or  to  whom  the  party 
was  not  in  the  habit  of  resorting  to  effect  insurance,^  and  which, 
therefore,  cannot  be  presumed  to  have  been  known  and  referred 
to  by  both  parties  as  the  basis  of  the  contract ;  for  it  is  on  this 
ground  only  that  evidence  of  usage  is  admitted.^ 

§  378.  Secondly,  as  to  the  proof  of  interest.  The  plaintifif's 
interest  in  a  ship  may  be  shown,  ji?rma/acie,  by  proof  of  possession, 
and  acts  of  ownership ;  which  may  be  made  by  the  captain  or 
other  officer,  or  by  any  person  having  competent  knowledge  of  the 
facts,  without  the  production  of  any  documentary  evidence.^  But 
whenever  the  title  to  a  ship  comes  strictly  in  question,  no  claim 
can  be  received  in  opposition  to  the  modes  of  conveyance  required 
by  the  statutes.^  Thus  where  the  plaintiff  claimed  for  a  total 
loss  as  sole  owner  of  a  ship,  whose  register  stood  in  the  names 
of  himself  and  another,  parol  evidence,  offered  to  show  that  she 
was  in  fact  purchased  by  himself,  as  sole  owner,  was  held  inad- 
missible,^ Where  the  interest  is  derived  from  a  hill  of  sale,  this 
document  must  be  produced  and  proved  as  in  other  cases ;''  accom- 
panied by  evidence  of  the  registry,  where  this  is  required  by 
statute,  in  order  to  render  the  other  evidence  admissible.^  But 
the  certificate  of  registry  is  not  alone  sufficient  to  prove  the  plain- 
tiff's interest  in  the  ship,  without  proof  of  some  correspondent 
act  of  ownership.^  Whetlier  it  is  conclusive  against  the  legal 
ownership  of  persons  claiming  title,  but  whose  names  are  not 
found  therein,  seems  to  depend  on  the  registry  acts.  In  England 
it  has  been  held  conclusive ;  but  in  the  United  States,  an  insur- 
able interest  has  been  held  sufficiently  proved  by  evidence  of  a 

1  See  ante,  Vol.  1,  §§  292  -  294  ;  Robert-  v.  Rogers,  1  Esp.  207  ;  Thomas  v.  Foyle, 
son  V.  Money,  Ry.  &  M.  75  ;  Uhde  v.  Wal-     5  Esp.  88. 

ters,  3  Campb.  16.  ^  Abbott  on  Shipping,  p.  78,  by  Shee. 

2  Gabay  v.  Lloyd,  3  B.  &  C.  793  ;  As-  «  Ohl  v.  The  Eagle  Ins.  Co.,  4  Mason, 
tor  V.   Union  Ins.   Co.,   7   Cowen,   202;     172. 

Coit  V,   Commercial   Ins.    Co.,   7  Johns.  "^  Woodward  ??.  Larkin,  3  Esp.  287. 

38.5.  8  4  Taunt.  657,  per  Gibbs,  J. 

3  Eager  v.  Atlas  Ins.  Co.,  14  Pick.  141.  ^  Pirie   v.   Anderson,  4  Taunt.  652  ;  2 
*  Robertson   v.   French,   4   East,    130;  Phillips  on  Ins.  p.  487  ;  Flower  v.  Young, 

Sutton  V.   Buck,   2  Taunt.   302  ;  Wend-     3  Campb.  240. 
over  V.  Hogeboom,  7  Johns.  308 ;  Amery 
VOL.  II.  22 


5535  LAW   OF  EVIDENCE.  [PART  IV, 

title  at  common  law,  in  a  plaintiff  whose  name  did  not  appear 
in  the  register.^  This  document,  however,  is  not  of  itself  evidence 
to  charge  a  defendant  as  owner  of  the  ship,  without  proof  that  he 
sanctioned  and  adopted  it.^  Where  the  registry  of  a  ship  is 
required  by  law  to  be  recorded  in  the  custom-house,  a  certified 
copy  of  the  record  is,  as  we  have  seen,  admissible  in  evideuce.*^ 

§  379.  It  is  not  material,  whether  the  interest  of  the  assured  be 
legal  or  equitable.  The  interest  of  a  trustee,  cestui  que  trust, 
mortgagor,  mortgagee,  and  of  the  owner  of  a  qualified  property, 
or  of  a  lien,  is  sufficient  for  this  purpose.  So,  of  a  lender  on 
bottomry ;  or  of  the  borrower,  so  far  as  regards  the  surplus 
value ;  or,  of  a  captor ;  or,  of  one  entitled  to  freight,  or  commis- 
sions ;  or,  of  the  owner,  notwithstanding  the  charterer  has 
covenanted,  either  to  return  the  ship,  or  pay  her  value.^  And 
under  a  general  averment  of  interest,  the  assured  may  prove  any 
species  of  interest,  either  in  the  whole  or  in  any  part,  and 
recover  accordingly.^ 

§  380.  The  interest  of  the  assured  in  the  goods  may  be  proved 
by  any  of  the  usual  mercantile  documents  of  title,  such  as  bills 
of  sale ;  or  of  parcels  ;  bills  of  lading,  whether  the  holder  be  the 
shipper  or  the  indorsee  ;  invoices,  with  proof  that  the  goods  were 
on  board ;   bills   of  charges  of  outfit,  clearances   and  the  like.^ 

1  Camden  v.  Anderson,  5  T.  R.  709  ;  E.  234  ;  Putman  v.  Mercantile  Ins.  Co.,  .•> 
Abbott  on    Shipping,  p.    63,   n.   (1),  by     Met.  386. 

Story,  J.;  Id.  p.  34,  n.  (2);  Bixby  y.  The  ^  Marshall  on  Ins.  p.   179    (3d  edit.). 

Franklin  Ins.   Co.,  8  Pick.  86;  Lamb  v.  See  also  Crowly  v.   Cohen,  3  B.  &  Ad. 

Durant,  12  Mass.  54;  Taggard  y.  Loring,  478.      [*A    testator    bequeathed    certain 

16  Mass.  336  ;  2  Phillips  on  Ins.  p.  488  ;  chattels,  insured  them  from  loss  by  sea,  and 

Sharp    V.    United    Ins.    Co.,    14    Johns,  afterwards  embarked  with  them  in  a  ship 

201 .  which  was  wrecked,  and  he  and  the  chattels 

2  Abbott  on  Shipping,  p.  63,  Story's  perished  together.  Held,  that  the  legatee 
edit. ;  Frazer  v.  Hopkins,  2  Taunt.  5  ;  had  no  interest  in  the  money  recovered  by 
Smith  17.  Fuge,  3  Campb.  4.56;  Sharp  v.  the  executors  from  the  insurance  company. 
United  Ins.  Co.,  14  Johns.  201.  But  the  Vice-Chancellor  remarks:       "It 

3  Ante,  Vol.  1,  §  484.  is  a  very  difficult  thing  to  say  how  such  a 
*  Marshall  on  Ins.  pp.  101-116,  719-     case  should  be  dealt  with."     Durrant  v. 

721    (3d  edit.);    Higginson  r.    Dall,    13  Friend,  11  Eng.  Law  &  Eq.  2.] 

Mass.  96;  Oliver  v.  Greene,  3  Mass.  133  ;  *^  Marshall    on    Ins.  pp.  718,   724   (3d 

Gordon   v.  Mass.   Ins.   Co.,  2  Pick.   249,  edit.);    Russell  v.  Boehm,   2  Str.    1127; 

2.59  ;  Kider  v.  Ocean  Ins.  Co.,  20  Pick.  Dickson  v.  Lodge,  1  Stark.   R.  226  ;  Mc- 

259  ;    Bartlctt  v.  Walter,  13  Mass.  267  ;  Andrew  ;;.  Bell,  1  Esp.  373  ;  2  Phillips  on 

Kenny  v.  Clarkson,  1  Johns.  385  ;  Locke  Ins.  pp.  449-491.     See,  as  to  the  indorsee 

r.  N.  Amer.  Ins.  Co.,  13  Mass.  61  ;  Strong  of  a  bill  of  lading,  Newsom  v.  Thornton,  6 

V.   Manuf    Ins.  Co.,  10   Pick.   40;   Hoi-  East,  41,  per.  Ld.  Ellenborough.     But  a 

brook  i;.  Brown,  2  Mass.   280  ;  Smith  v.  bill  of  lading  of  the  outward  cargo  is  not 

Williams,  2  Caines,  Cas.  110.     The  inter-  sufficient  proof  of  interest  in  the  return 

est  of  a  respondentia  or  bottomry  creditor  cargo.     Beal  v.  Pettit,  1  Wash.   C.  C.  R. 

must  be  specially  insured  as  such.     Glov-  241.     Nor  is  a  bill  of  lading,  "contents 

er  V.  Black,  3  Burr.    1394  ;  Pouverin  v.  unknown,"  any  evidence  of  the  quantity 

Louisiana  State   Ins.  Co.,  4  Rob.  Louis,  of  goods,  or  of  property  in  the  consignee. 


PART  IV.]  INSURANCE.  339 

Evidence  of  possession,  also,  and  of  other  acts  of  ownership,  may 
be  received  in  proof  of  interest  in  the  goods  on  board,  as  well 
as  of  interest  in  the  ship.^  And  it  is  sufficient  that  the  plaintiff 
was  interested  when  the  risk  commenced,  though  he  had  no 
interest  when  the  policy  was  effected. ^  If  the  defendant  pays 
money  into  court,  this  is  a  conclusive  admission  of  the  contract, 
and  of  the  plaintiff's  interest  as  alleged.^ 

§  881.  Where  the  insurance  is  effected  by  an  open  policy,  the 
value  of  the  plaintiff's  interest  must  be  proved  alkmde;  but  if 
it  be  a  valued  policy,  the  policy  alone  is  prima  facie  evidence  of 
the  value  of  the  property  insured.*  The  usual  recital  in  the 
policy,  of  payment  of  the  premium,  is  also  sufficient  proof  of  that 
fact ;  but  in  the  absence  of  such  recital,  the  plaintiff  must  prove 
it  by  other  evidence.^ 

§  382.  Thirdly,  as  to  the  Inception  of  the  Rish.  This  applies 
to  insurance  upon  a  voyage  named,  and  is  proved  by  any  compe- 
tent evidence,  that  the  ship  actually  sailed,  within  a  reasonable 
time,  upon  the  voyage  intended.^  If  the  insurance  is  for  one 
voyage,  but  the  ship  actually  sails  upon  another,  the  course  of 
both  voyages  being  the  same  to  a  certain  point,  the  policy  is 
discharged,  though  the  loss  happened  before  the  ship  reached  the 
dividing  point.'^  But  if  the  ship  sails  on  the  voyage  insured,  a 
deviation  meditated,  but  not  carried  into  effect,  will  not  vitiate  the 
policy.^  And  the  sailing  must  be  voluntary ;  for  if  the  ship, 
before  the  lading  is  completed,  be  driven  from  her  moorings  by  a 
storm,  and  be  lost,  the  averment  of  sailing  is  not  considered  as 
proved.^  The  risk  on  goods  does  not  commence  until  goods  are 
put  on  board,  at  the  place  named ;  ^^  but  the  risk  on  freight  may 

Haddow  v.   Parry,    3  Taunt.   303.      An  ^  Koster  v.  Inness,  Ry.  &  M.  336  ;  Co- 

autlienticated  copy  of  an  official  report  of  hen  v.  Hinckley,  2  Campb.  51. 

the  cargo  of  a  ship,  made  pursuant  to  law,  "^  Woolridge  i'.  Boydell,    1    Doug.  16; 

by  an  officer  of  the  customs,  is  evidence  Marsden  v.  Reid,  3  East,  572  ;  2  Phillips 

of  the  shipment.     Flint  v.  Fleming,  1  B.  on  Ins.  p.  148 ;  Seamens  v.  Loring,  1  Ma- 

&  Ad  45,  48;  Johnson  v.  Ward,  6  Esp.  son,  127. 

47.  8  Foster  v.  "Wilmer,  2  Stra.  1249;  Hare 

1  Supra,  §  378;  2  Phillips  on  Ins.  p.  v.  Travis,  7  B.  &  C.  14.     See  2  Phillips 

489.  on  Ins.  ch.  xi.  xii. ;  Marshall  on  Ins.  pp. 

'^  Rhind  v.  Wilkinson,  2  Taunt.  237.  260,  278  (3d  edit.) ;  Lee  v.  Gray,  7  Mass. 

3  See  ante,  Vol.  1,  §  205  ;  Bell  v.  Ans-  349 ;    Coffin  v.  Newburyport  Ins.    Co.,  9 

ley,  16  East,  141,  146.  Mass.  436  ;  Hobart  v.  Norton,  8  Pick.  159. 

*  Marshall  on  Ins.  p.  719   (3d  edit.);  »  Abithol  y.  Bristow,  6  Taunt.  464. 

2    Phillips   on    Ins.    pp.    206-223,    491;  W  Marshall  on  Ins.  pp.  244,  245,  278, 

Lewis  V.  Rucker,  2  Burr.  1171  ;  Alsop  v,  724  (3d  edit.).     [In  the  absence  of  a  dis- 

Commercial  Ins.  Co.,  1  Sumner,  451.  tinct  statement  in  the  policy  of  the  port 

^  De  Gaminde  v.  Pigou,  4  Taunt.  246  ;  whence  the  voyage  is  to  be  made,  the  risk 

Dalzell  V.  Mair,  1  Campb.  532.  will  commence  from  a  port  where  the  ■?e»- 


340  LAW   OF   EVIDENCE.  [PART  I\ 

be  shown  lo  have  commenced,  by  evidence  of  a  contract  to  put 
the  goods  on  board,  the  performance  of  which  was  prevented  by 
some  of  the  perils  insured  against.^  If  the  risk  never  commenced, 
the  plaintiff,  in  an  action  upon  the  policy,  and  in  the  absence  of 
fraud,  may  recover  back  the  premium,  upon  the  common 
counts.^ 

§  383.  Fourthly/,  as  to  the  performance  of  precedent  Conditions 
and  compliance  with  Wa7'ranties.^  All  express  warranties,  and 
all  affirmative  averments,  are  in  the  nature  of  conditions  prece 
dent  to  the  plaintiff's  right  to  recover ;  and  therefore  must  be 
strictly  proved.  Such  are  warranties  that  the  property  is  neutral ; 
that  the  ship  sailed  at  the  time  specified ;  that  she  departed  with 
convoy  ;  that  she  was  of  the  force  named  ;  and  the  like.  The  first 
of  these,  namely,  the  neutral  character  of  the  property,  being 
partly  negatived  in  its  nature,  is  proved  prima  facie  by  general 
evidence,  leaving  the  contrary  to  be  shown  by  the  defendant.* 
The  acts  of  the  captain  in  carrying  neutral  colors,  and  in  ad- 
dressing himself  to  the  neutral  consul  while  in  port,  and  the  like, 
are  also  admissible  for  the  shipper,  as  prima  facie  evidence  of  the 
neutral  character  of  the  ship.^  If  the  warranty  is  that  the  ship 
shall  sail  on  or  before  a  certain  day,  stress  of  weather,  or  an 
embargo  by  the  order  of  government,  is  no  excuse  for  non- 
compliance with  the  engagement.^  It  must  also  appear  that  the 
ship  actually  set  forward  on  the  voyage,  in  complete  readiness  for 
sea.  Therefore,  an  attempt  to  sail,  and  proceeding  a  mile  or 
two  and  then  putting  back,  by  reason  of  unfavorable  weather ; 
or  proceeding  with  only  part  of  the  crew,  the  remainder  being 
engaged  and  ready  to  sail ;  or  dropping  a  few  miles  down  the 
river;  is  no  compliance  with  this  warranty.'^ 

sel  lay  when  the  policy  was  made,  and  620.     And  see  Bernard!  v.  Motteaux,  2 

where  the  property  insured  was  taken  on  Doug.  575. 

board.     Folsom   v.   Merchants',   &c.    Ins.  ^  Nelson   v.    Salvador,    1    M.    &  Malk. 

Co.,  38  Maine,  414.     A  risk  on  goods  to  309  ;  Sanderson  i'.  Biishcr,  4  Campb.  54,  n. ; 

be  shipped  between  two  certain  days  docs  Hore  v.   Whitmore,   Cowp.  784.      If  the 

not  cover  goods  shipped  on  either  of  those  averment  is  that  the  ship  sailed  after  mak 

dtys.     Atkins  v.  Boylston,   &c.  Ins.  Co.,  ing  the  policy,  and  the  proof  is  that   she 

5  Met.  439.]  sailed  before,  the  variance  is  not  material, 

1  Flint  V.  Fleming,  I  B.  &  Ad.  45 ;  provided  the  averment  does  not  arise  out 
Davidson  v.  Willasey,  1  M.  &  S.  313.  of  the  contract.     Peppin  v.  Solomons,  5 

2  Penson  v.  Lee,  2  B.  &  P.  330 ;  Penni-  T.  R.  406.  An  embargo  at  the  place  of 
man  v.  Tucker,  11  Mass.  66;  Foster  v.  rendezvous  of  a  convoy,  after  the  ship  haa 
United  States  Ins.  Co.,  11  Pick.  85.  actually   sailed  from   her  port,  saves   the 

8  [See  post,  §§  399-401,  406.]  warranty.     Earle  v.  Harris,  1  Doug.  357. 

*  Marshall   on    Ins.  pp.    722,    723   (3d  ^  Moir  v.  Koyal  Ex.  Ass.  Co.,  4  Campb. 

edit.);  2  Phillips  on  Ins.  pp.  498-502.  84;  6  Taunt.  241  ;  Graham  v.  Barras,  3 

6  Archangelo  v.  Thompson,  2  Campb.  N.  &  M.  125;  5  B.  &  Ad.  1011  ;  Pettigrew 


PART  IV.j  INSURANCE.  8-11 

§  384  Compliance  with  a  warranty  to  sail  with  convoy  may  be 
proved  by  the  official  letters  of  the  commander  of  the  convoy ; 
or,  by  the  log-book  of  the  convoying  ship  of  war.^  And  where  the 
non-performance  of  this  warranty  would  have  involved  a  breach 
of  law,  it  will  be  presumed  that  the  law  has  been  obeyed,  until  the 
contrary  has  been  shown.^  Sailing  orders  are  generally  necessary 
to  the  performance  of  this  warranty,  if,  by  due  diligence  on  the 
part  of  the  master,  they  could  have  been  obtained.^  But  the  state 
of  the  weather  is  not  a  sufficient  excuse  for  not  joining  the  convoy.* 

§  385.  Fifildy^  as  to  the  Loss.  The  plaintiff  must  also  prove 
that  the  property  insured  was  lost,  and  that  the  loss  was  not 
remotely  but  immediately  caused  by  one  of  the  perils  insured 
against.  Whether  the  loss,  which  is  proved,  will  satisfy  the 
averment,  is  a  question  for  the  court,  but  the  averment  itself  must 
be  proved.^  The  certificate  of  a  vice-consul  abroad  is  no  evidence 
of  the  amount  of  the  loss  ;  ^  nor  is  the  protest  of  the  captain 
admissible  as  original  evidence  of  the  fact  of  loss,  though  it  may 
be  read  to  contradict  his  testimony.'^  If  there  is  no  proof  of  the 
amount  of  the  loss,  the  plaintiff  will  be  entitled  to  nominal  dam- 
ages only.^ 

§  386.  The  loss  of  a  ship  may  be  shown  not  only  by  direct 
proof,  but  by  evidence  of  any  circumstances  inconsistent  with  the 
hypothesis  of  her  safety  ;  such  as  that,  having  sailed  upon  the 
voyage  insured,^  no  intelligence  has  been  received  concerning  her, 
either  at  her  port  of  departure,  or  at  her  port  of  destination,  both 
of  which  should  be  resorted  to,^*'  although  a  reasonable  time  has 
elapsed ;  in  which  case  the  jury  will  be  advised  to  presume  that 
she  foundered  at  sea.^^  If  it  has  been  reported  that  she  foun- 
dered, but  that  the  crew  were  saved,  yet  it  will  not  be  necessary 
to  call  any  of  the  crew.^^ 

§  387.   It  must  be  shown  that  the  peril  insured  against  was  the 

p  Pringle,  3  B.  &  Ad.  514  ;  Bowen  v.  The  ^  Waldron  v.  Combe,  3  Taunt.  162. 
Hope  Ins.  Co.,  20  Pick.  275;  Robinson  v.  ''  Senat  v.  Porter,  7  T.  K.  158;  Chris- 
Manufacturing  Ins.  Co.,  1  Met.  143.  tian  v.  Combe,  2  Esp.  489. 

1  Watson  V.  King,  4  Campb.  275;  D'ls-  ^  Tanner  v.  Bennett,  Ry.  &  M.  182. 
raeli  v.  Jowett,  1  Esp.  427.  9  Kosterw.  Jones,  Ry.  &M.333  ;  Cohen 

2  Thornton  v.  Lance,  4  Campb.  231.  v.  Hinckley,  2  Campb.  51. 

8  Webb  V.  Thompson,  1  B.  &  P.  5  ;  Hib-  1°  Twemlow  v.   Oswin,  2    Campb.  85. 

bert  V.  Pigon,  3  Doug.  224  ;  Anderson  v.  But  see  Marshall  on  Ins.  p.  25  (3d  edit.). 

Pitcher,  2  B.&  P.  164;  Sanderson  y.  Bush-  "  Newby  v.   Read,  Park  on  Ins.  106; 

er,  4  Campb.  54,  note.  Houstman  v.  Thornton,  Holt's  Cas.  242 ; 

*  Sanderson  v.  Busher,  4   Campb.  54,  Paddock  v.  Franklin   Ins.    Co.,   11   Pick. 

nob3.  227. 

6  Abitbol  V.  Bristow,  6  Taunt.  464.  12  Foster  v.  Reed,  6  B.  &  C.  19. 


842  LAW   OF   EVIDENCE.  [PABT  IV 

immediate,  aud  not  the  remote  cause  of  the  Joss.  Causa  proxima 
non  reniota  spectatur.  The  loss  must  directly  arise  from,  and  not 
remotely  be  occasioned  or  brought  alx)ut  by,  the  peril.^  Thus, 
where  a  peril  of  the  sea  occasioned  damage  to  the  ship,  which 
rendered  repairs  necessary,  and  funds  to  provide  these  repairs, 
and  in  order  to  raise  funds  the  master,  having  no  other  resource, 
sold  part  of  the  goods  on  board,  it  was  held  that  the  underwriter 
on  the  goods  was  not  liable  as  for  a  loss  by  a  peril  of  the  sea ; 
the  want  of  funds,  and  not  the  peril  of  the  sea,  being  the  imme- 
diate cause  of  the  loss.^  On  the  other  hand,  underwriters  against 
perils  of  the  sea  are  liable  for  any  loss  immediately  arising  from 
those  perils,  such  as  shipwreck,  or  collision,  though  it  were 
remotely  occasioned  by  the  mismanagement,  negligence,  or  bar- 
ratry of  the  master  or  mariners ;  ^  or  by  the  negligent  loading 
of  the  cargo.'*  And  if  a  ship,  by  stress  of  weather,  be  driven 
ashore  upon  an  enemy's  coast,  and  there  captured,  it  is  a  loss 
by  capture,  as  the  immediate  cause,  and  not  by  perils  of  the 
sea.^ 

§  388.  A  loss  by  capture  is  proved  by  first  showing  a  capture 
m  fact,  and  then  producing  the  sentence  of  condemnation  ;  the 
latter  generally  not  being  admissible  until  the  former  is  proved.^ 

1  Marshall  on  Ins.  491  (3d  edit.);l  500  (Exch.)-  The  exception  of " perils  of 
Phillips  on  Ins.  283-290;  2  Phillips  on  the  river,"  in  inland  navigation,  is  equiv- 
Ins.  194,  195  ;  Peters  v.  The  Warren  Ins.  alent  to  that  of  perils  of  the  sea  in  corn- 
Co.,  14  Peters,  R.  99;  Columbian  Ins.  merce  on  the  ocean  ;  and  is  held  to  inclnde 
Co.  r.  Lawrence,  10  Peters,  R.  507  ;  [Scrip-  losses  occasioned  by  running  on  hidden 
ture  V.  Lowell,  &c.  Ins.  Co.,  10  Cush.  snags  and  sawyers,  and  by  collisions  ren- 
356.]  dered  inevitable  by  the  narrowness  of  the 

2  Powell  V.  Gudgeon,  5  M.  &  S.  431,  channel.  Eveleigh  v.  Sylvester,  fcitcd  in 
437.  So  the  extraordinary  expense  of  1  Harp.  Law  R.  263,  266  ;  Charleston  & 
provisions,  occasioned  by  delay  during  the  Col.  Boat  Co.  v.  Bason,  lb.  See  also  Gor- 
making  of  repairs,  or  during  an  embargo,  don  v.  Little,  8  S.  &  R.  533;  Gordon  v. 
is  not  recoverable  against  underwriters  on  Buchanan,  5  Ycrg.  71  ;  Srayrl  v.  Niolon, 
the  ship  only.  Marshall  on  Ins.  730  (3d  2  Bailey,  421  ;  Williams  v.  Grant,  1  Conn, 
edit.),  Robertson  v.  Ewer,  1  T.  R.  127.  R.  487  ;  Turner  w.  Wilson,  7  Yerg.  340. 
Yet  a  direct  loss  of  provisions  wovdd  be  [UnderwTiters,  insuring  a  vessel  against 
covered  by  n  policy  on  the  ship,  of  which  the  perils  of  the  sea,  are  bound  to  pay  the 
they  arc  ordinarily  deemed  a  part.  Mar-  insured  the  amount  paid  by  him  to  the 
shall  on  Ins.  731 ;  1  Phillips  on  Ins.  71  ;  owners  of  another  vessel  for  damages  suf- 
2  Phillips  on  Ins.  218.  fered  in  a  collision  with  the  vessel  insured, 

3  Walker  v.  Maitland,  5  B.  &  Aid.  171  ;  occasioned  by  the  negligence  of  the  master 
Smith  V.  Scott,  4  Taunt.  126;  Bishop  v.  and  crew  of  the  latter  vessel.     Nelson  v. 
Pentland,  7  B.  &  C.  214;  lleyman  v.  Par-  Suffolk  Ins.   Co.,  8  Cush.  477;  Hale   v. 
ish,  2  Campb.   149;  Columbian  Ins.  Co.  Washington  Ins.  Co.,  2   Stoiy,   R.  176; 
V.  Lawrence,  10  Peters,  R.  507;  Patapsco  Matthews  v.  Howard  Ins.  Co.,  13  Barb. 
Ins.  Co.  V.  Coulter,  3  Peters,  R.  222.     As  234.     But   see,  contra,   General  Mut.  Ins. 
to  what  constitutes  a  loss  by  perils  of  the  Co.  v.  Sherwood,  14  How.  U.  S.  351.] 
sea,  see  Marshall  on   Ins.  487-494    (3d  *  Redman  v.  Wilson,  14  M.  &  W.  476. 
edit.);    1    Phillips   on   Ins.   245-256;    2  6  Green  m.  Elmslie,  Peake's  Cas.  212. 
Phillips  on    Ins.    189-191;    Montoya  v.  ^  Marshall   v.  Parker,    2    Campb.    69; 
London  Assur.  Co.,  4  Eng.  L.  &  Eq.  R.  Visgcr  v.  Prescott,   2  Esp.  184.    Lloyd's 


PART  IV*]  INSURANCE.  343 

And  if  it  appear  that  the  capture  was  by  collusion  between  the 
master  of  the  ship  and  the  enemy,  so  that  a  charge  of  barratry 
might  be  supported,  yet  it  is  still  also  a  loss  by  capture.^  An 
averment  of  loss  by  capture  by  enemies  unknown  is  not  sup 
ported  by  proof  of  seizure  for  breach  of  the  revenue  laws  of  a 
foreign  government.^  But  a  general  averment  of  loss  by  seizure 
and  confiscation  by  a  foreign  government  is  proved  by  evidence 
of  the  seizure  by  the  officers  of  the  government,  without  putting 
in  the  sentence  of  condemnation. ^  And  in  the  case  of  seizure  of 
the  goods  by  a  foreign  government  for  a  cause  not  affecting  the 
ship,  the  incidental  and  consequent  detention  of  the  ship  is  not 
provable  against  the  underwriters  on  the  ship  only,  as  a  loss 
by  capture  and  detention.'* 

§  389.  If  the  voyage  was  legalized  or  protected  by  a  license, 
the  license,  if  existing,  must  be  produced  and  proved,  and  shown 
to  apply  to  the  voyage  in  question.^  If  this  document  is  lost, 
it  may  be  proved  by  secondary  evidence,  as  in  other  cases.* 
If  it  was  granted  upon  condition,  the  plaintiff  must  show  that  the 
condition  has  been  performed.'^  And  if  it  was  a  foreign  license, 
it  is  a  necessary  part  of  the  secondary  evidence  not  only  to  show 
that  the  party  had  a  paper  purporting  to  be  such  a  document, 
but  to  give  some  circumstantial  proof  that  it  was  genuine ; 
such  as,  that  it  was  received  from  the  hands  of  a  proper  officer, 
or  that  it  had  been  seen  and  respected  by  the  officers  of  the 
government  which  issued  it.^ 

§  390.    A  loss  by  barratry  is  proved  by  evidence  of  any  species 

books  are  evidence  of  a  capture,  though  not  217.     In  Kleinwort  v.  Shepard,  1  El.  &  El. 

alone  proof  of  notice  to  the  assured.     Abel  447,  it  was  held  that  a  forcible  disposses- 

V.  Potts,  3  Esp.  242.  sion  of  the  master  and  mariners  by  passen- 

1  Archangelo  v.  Thompson,  2  Campb.  gers  acting  "piratically  and  feloniously" 

620.     See  also  Goldschmidt  v.  Whitmore,  might  properly  be  deemed  a  seizure.     In 

3  Taunt.  .508.     [*  A  warranty  by  the  in-  Dole  v.  New  Eng.  Mut.  Mar.  Ins.  Co.,  6  Al- 

sured  in  a  policy  of  insurance,  that  the  ves-  len,  373,  it  was  held  that  a  capture  by  a  cruis- 

sel  shall   be  free  from  capture,  seizure,  or  er  of  the  so-called  Confederate  States  was 

detention,   does   not  include   a   mutinous  included  in   a   warranty   that   the  vessel 

taking  ]X)ssession  of  the  vessel  by  the  mar-  shall  be  free  from  capture,  seizure,  or  deten- 

iners.     In  this  case,  Bigelow,  C.  J.,  says  :  tion.] 

"  Upon   careful  consideration,  we  are  of  ^  Matthie  v.  Potts,  3  B.  &  P.  23. 

opinion    that  the  exception  of  a  loss   by  ^  Carruthers  v.  Gray,  3  Campb.  142. 

seizure  does  not  include  the  risk  of  mu-  *  Bradford  v.  Levy,  2  C.  &  P.  137  ;  By. 

tiny   of    the    mariners    and    the    forcible  &  M.  331. 

taking  of  the  ship  from  the  control  of  the  ^  Barlow  i\  Mcintosh,  12  East,  311. 

officers;  or,  in  other  words,  that  it  does  ^  ^„;g^   Vol.   1,  §§84,  509,  560,   575; 

not  properly  exclude  from  the  operation  Rhind  v.  Wilkinson,  2  Taunt.  237 ;  Ken- 

of  the   policy  a  loss   by  barratry.      Cer-  sington  v.  Inglis,  3   East,   273 ;    Eyre  v. 

tainly  the  word  '  seizure '   cannot  be   ap-  Palsgrave,  2  Campb.  605. 

plied  to  any  barratrous  act  of  the  master."  "^  Camelo  v.  Britten,  4  B.  &  Aid.  184. 

<ireene  v.  Pacific  Mut.  Ins.  Co.,  9  Allen,  ^  Evcrth  v.  Tunno,  1  Stark.  R.  508- 


844  LAW   OF  EVIDENCE.  [PART  IV. 

of  fraud,  knavery,  or  criminal  conduct,  or  wilful  breach  of  duty 
in  the  master  or  mariners,  by  which  the  freighters  or  owners 
are  injured.^  If  the  master  should  proceed  on  his  voyage  in 
the  face  of  inevitable  danger  of  capture,  it  is  barratry .^  It  is 
sufficient  for  the  plaintiff,  in  proof  of  barratry  by  the  master, 
to  prove  that  the  misconduct  was  that  of  the  person  who  acted 
as  master,  and  was  in  fact  treated  as  such,  without  either  show- 
ing, negatively,  that  he  was  not  the  owner,  or  affirmatively,  that 
some  other  person  was  the  owner.^  But  it  must  appear  tliat  the 
act  was  done  from  a  fraudulent  motive,  or  with  a  criminal  intent, 
or  in  known  violation  of  duty  ;  for  if  it  was  well  intended,  though 
Injudicious  and  disastrous  in  its  results,  it  is  not  barratry.'*  If 
the  property  was  barratrously  carried  into  an  enemy's  blockaded 
port,  and  lawfully  condemned  as  enemy's  property,  it  does  not 
disprove  the  allegation,  that  the  loss  was  occasioned  by  the  bar- 
ratry of  the  master,  in  carrying  the  property  to  places  unknown, 
whereby  it  was  confiscated.^ 

§  391,  A  loss  by  stranding  is  proved  by  evidence  that  the  ship 
has  been  forced  on  shore,  or  on  rocks  or  piles,  by  some  unfore- 
seen accident,  and  not  in  the  ordinary  course  of  navigation,  and 
there  rested,  or  was  fixed,  so  that  the  voyage  was  interrupted. 
A  mere  temporary  touching  of  the  ground  in  passing  over  it, 
or  grounding  in  a  tide  harbor  in  the  place  intended,  is  not 
a  stranding,  even  though  damage  ensues  from  some  hard  sub- 
stance on  the  bottom.^  And  where  a  ship  was  run  aground  by 
colHsion  with  two  others,  in  the  Thames,  this  is  said  to  have  been 
held  no  stranding.''^      If  the  stranding   is  complete,  the  degree 

^  Vallejo  V.  Wheeler,   Cowp.  156,   per  Gross   malversation  is  evidence  of  fraud. 

Aston,  J. ;  Lockyer  v.  Offley,  1  T.  R.  259,  Ibid. ;  Heyman  v.  Parish,  2  Campb.  150  ; 

per  Willes,  J.;  Marshall  on  Ins.  eh.  12,  Earle  v.  Kowcroft,  8  East,  126.     See  also 

§  6  ;  1  Phillips  on  Ins.  258  ;  Stone  v.  Na-  Huc-ks  v.  Thornton,  Holt's  Cas.  30  ;  Wig- 

tional  Ins.   Co.,  19  Pick.  34,  36,  37,  per  gin  t-.  Ainory,  14  Mass.  1. 
Putnam,  J. ;  Wig-gin  v.  Amory,  14  Mass.         °  Goldschmidt  v.  Whitmore,  3  Taunt. 

1  ;    American  Ins.    Co.    v.   Dunham,    15  508. 

Wend.  9.     Barratry  may  be  committed  by         ®  K..rman    t:    Vaux,   3    Campb.   429; 

the  general  owmer,  as  against  the  freighter.  McDougle  v.  Royal  Exch.  Ass.  Co.,  4  M. 

Vallejo  V.  Wheeler,  supra.     [As  to  what  &  8.  503  ;  Kingsford  v.  Marshall,  8  Bing. 

constitutes  barratry,  see  Lawton   v.   Sun  458 ;  Wells  v.    Ilopwood,   B.   &   I).   20 ; 

Mutual  Ins.  Co.,  2  Cush.  500 ;  and  cases  Bishop   v.   Pentland,    7   B.   &    C.  224;  2 

there  cited.     Patapsco  Ins.  Co.  y.  Coulter,  Phillips  on   Ins.   330-335;  Marshall  on 

3  Pet.  222,  234.]  Ins.  232,  233  (3d  edit.).     [* See  Corcoran 

^  Earle  v.  Rowcroft,  8  East,  126  ;  Rich-  v.  Gurney,  16  Eng.  L.  &  Eq.  215.     Lake 

ardson  V.  Maine  F.  &  M.  Ins.  Co.,  6  Mass.  v.  The  Columbus   Ins.  Co.,  13  Ohio,  R. 

102,  117.  48  (1844),  and  Potter  v.  Sutfolk  Ins,  Co., 

3  Ro.ss  V.  Hunter,  4  T.  R.  33.  2  Sumner,  R.  197  (1835).] 

*  Marshall  on  Ins.  521  (3d  edit.)  ;  Phyn         '  Baring  v.  Ilenkle,  Marshall  on  Ins. 

V.    Royal  Exch.  Ass.   Co.,  7  T.  R.  505.  232  (3d  edit.).     Sal  gucere. 


PART  IV.] 


INSURANCE. 


34r 


of  damage,  and  the  duration  of  the  time  of  the  vessel's  remaiuinjr 
on  shore,  are  not  material. ^ 

§  392.  The  amount  of  the  loss,  if  it  is  total,  may  be  shown, 
as  we  have  already  seen,  by  the  policy,  with  proof  of  some  inter- 
est, if  it  is  a  valued  policy ;  or  by  any  other  competent  evidence, 
if  it  is  not.2  Shipwreck  is  often,  but  not  necessarily,  evidence 
of  a  total  loss  of  the  ship.  It  depends  upon  the  nature  and 
extent  of  the  injury  or  damage  thereby  occasioned.  If  the  loss 
is  not  actually  total,  but  the  enterprise  or  voyage  insured  is 
defeated,  or  if  the  property  insured  specifically  remains,  but  is 
damaged  to  a  fatal  extent,  as,  for  example,  to  more  than  one 
half  of  its  value,  this,  though  in  fact  it  may  be  but  a  partial  loss, 
may  be  made  constructively  total  by  an  abandonment  of  the 
property  by  the  assured  to  the  underwriter.^     When,  therefore, 


1  Harman  v.  Vaux,  3  Campb.  430  ;  Ba- 
ker V.  Towry,  1  Stark.  R.  436. 

2  See  supra,  §  381  ;  3  Mason,  71.  The 
value  of  goods,  in  an  open  policy,  is  made 
up  of  the  invoice  price,  together  witli  the 

fremium  and  commissions.     Marshall  on 
ns.  629  (3d  edit.). 

3  Marshall  on  Ins.  566,  567,  592  (3d 
edit.)  ;  1  Phillips  on  Ins.  382-388,  401- 
406,  441  -  449  ;  3  Kent,  Comm.  318  -335  ; 
Bradliey.  Tlie  Maryland  Insurance  Co.,  12 
Peters,  378.  The  law  of  abandonment 
was  fully  discussed,  and  all  the  cases  re- 
viewed by  Mr.  Justice  Story,  in  his  learned 
opinion  in  Peele  v.  Merchants'  Ins.  Co.,  3 
Mason,  27  -  65.  The  general  principle, 
extracted  from  all  the  cases,  in  regard  to 
ships,  he  thus  states: — "The  rigiit  of 
abandonment  has  been  admitted  to  exist, 
where  there  is  a  forcible  dispossession  or 
ouster  of  the  owner  of  the  ship,  as  in  cases 
of  capture ;  where  there  is  a  moral  re- 
straint or  detention,  which  deprives  the 
owner  of  the  free  use  of  the  ship,  as  in  cases 
of  embargoes,  blockades,  and  arrests  by 
sovereign  authority*;  where  there  is  a  pres- 
ent total  loss  of  the  physical  possession 
and  use  of  the  ship,  as  in  case  of  submer- 
sion ;  where  there  is  a  total  loss  of  the  ship 
for  the  voyage,  as  in  case  of  shipwreck,  so 
that  the  ship  cannot  be  repaired  for  the 
voyage  in  the  port  where  the  disaster  hap- 
pens ;  and,  lastly,  where  the  injury  is  so 
extensive,  that  by  reason  of  it  the  ship  is 
useless,  and  yet  the  necessary  repairs 
would  exceed  her  present  value.  None 
of  these  cases  will,  I  imagine,  be  disputed. 
If  there  be  any  general  principle  that  per- 
vades and  governs  them,  it  seems  to  be 
this,  that  tlie  right  to  abandon  exists, 
whenevei,  from  the  circumstances  of  the 


case,  the  ship,  for  all  the  useful  purposes 
of  a  ship  for  the  voyage,  is,  for  the  present, 
gone  from  the  control  of  the  owner,  and 
the  time  when  she  will  be  restored  to  him 
in  a  state  to  resume  the  voyage  is  uncer- 
tain, or  unreasonably  distant,  or  the  risk 
and  expense  are  disproportioned  to  the 
expected  benefits  and  objects  of  the  voy- 
age. In  such  a  case,  the  law  deems  the 
ship,  though  having  a  physical  existence, 
as  ceasing  to  exist  for  purposes  of  utility, 
and  therefore  subjects  her  to  be  treated 
as  lost."  See  3  Mason,  65.  See  also  Am. 
Ins.  Co.  V.  Ogden,  15  Wend.  532.  Wheth- 
er an  abandonment  is  necessary,  where  the 
ship  or  goods  have  been  necessarily  sold 
by  the  master,  qucere;  and  see  Roux  v. 
Salvador,  1  Bing.  N.  C.  526,  that  it  is; 
and  Gordon  v.  Massachusetts  F.  &  M. 
Ins.  Co.,  2  Pick.  249,  261,  267,  and  cases 
there  cited  ;  approved  in  5  Peters,  623, 
[Patapsco  Ins.  Co.  v.  Southgate],  that  it 
is  not.  [In  Massachusetts  the  rule  is  held 
to  be  that  when  the  right  is  claimed  to 
abandon  for  a  constructive  total  loss,  in 
consequence  of  a  damage  to  more  than 
half  the  value  of  the  vessel  by  any  peril 
insured  against,  the  valuation  in  the  policy 
is  conclusive.  Allen  v.  Commercial  Ins. 
Co.  1  Gray,  154.  And  there  must  first  be 
a  deduction  of  one  third  new  for  old.  Ibid. 
Mr.  Phillips  states,  that  the  rule  seems  to 
be  that  the  value  of  the  vessel,  when  re- 
paired, is  to  be  taken,  when  the  policy 
contains  no  express  provision  to  the  con- 
trary, and  not  the  value  expressed  in  tho 
policy.  2  Phillips  on  Ins.  (3d  edit.) 
§  1539,  and  cases  cited.  Greely  v.  Tre- 
mont  Ins.  Co.,  9  Cush.  415. 

If  a  vessel  arrives  at  her  port  of  destina- 
tioa  damaged  by  perils  insured  against  to 


31(3  LAW   OF   EVIDENCE.  [PART  IV. 

the  assured  goes  for  a  constructively  total  loss,  he  must  prove, 
first,  the  extent  of  the  loss  in  fact,  as  exceeding  half  the  value, 
or  as  being  destructive  of  the  enterprise  ;  and  secondly,  his  aban- 
donment of  the  property  to  the  underwriters.  And  in  estimating 
the  cost  of  repairs,  in  order  to  ascertain  the  right  to  abandon, 
if,  by  reason  of  the  perils  insured  against,  it  has  become  necessary 
to  replace  some  decayed  timbers  with  new  ones,  which,  but  for 
the  injury,  were  strong  enough  for  the  voyage,  the  expense  of 
such  repairs  is  to  be  taken  into  the  estimate ;  the  rule  in  this 
respect  being,  that,  when  the  injury  which  the  insurers  are 
obliged  to  make  good  is  the  cause  of  the  decayed  parts  requiring 
repairs,  then  the  insured  may  abandon. ^  And  more  generally 
speaking,  the  rule  is  stated  to  be,  that  "  If  the  vessel  is  so 
injured  by  a  peril  insured  against  as  to  be  useless  to  the  owner, 
except  at  an  expense  that  no  prudent  man,  if  uninsured,  would 
incur,  —  an  expense  far  exceeding  her  value  when  repaired, — 
this  is,  to  all  intents  and  purposes,  a  total  loss."  ^  But  if  the 
abandonment  has  been  accepted,  this  supersedes  the  necessity 
of  proof  of  the  loss ;  ^  and  long  acquiescence  without  objection, 
under  circumstances  calling  for  some  action  on  the  part  of 
the  underwriters,  is  evidence  from  which  an  acceptance  may  be 
inferred  by  the  jury.* 

an  amount  less  than  half  her  valuation  in  sured,  though  less  than  half  the  value  (in 

the  policy,  deducting  from  the  requisite  re-  this  case  thirty-eight  per  cent)  has  arrived 

pairs  one  third  new  for  old,  and  is  sold  by  at  the  port  of  destination,  and  been  landed 

the  master,  in  the  presence  of  the  owners,  be-  in  a  perfect  state,  tlie  insured  cannot  aban- 

cause  of  the  impossiliility  of  obtaining  the  don  and  recover  as  for  a  total  loss.     Forbes 

funds  necessary  to  repair  her,  the  owners  are  v.  Manufac.  Ins.  Co.,  1  Gray,  371.     The 

not  entitled  to  abandon  her  to  the  underwri-  owner  of  goods  jettisoned  for  the  common 

ter  and  recover  as  for  a  total  loss.     Allen  v.  benefit  may   recover  of  the  underwriters? 

Commercial  Ins.  Co.,  1  Gray,  1.54.     But  if  without  first  demanding  contribution  of 

the  vessel  is  at  a  port  of  necessity,  needing  the  other  interests  benefited  by  the  jetti- 

repairs,  and  the  master  finds  it  impossible  son  ;  and  if  the  policy  is  a  valued  one,  the 

to  obtain  the  requisite  funds  for  her  repairs  value  in  the  policy  is  to  prevail,  altliough 

by  bottomry  or  otherwise,  or  to  consult  it  exceed  the  market  value  of  the  goods  at 

the  owners,  he  may  sell ;  and  if  no  lien  has  their  place  of  destinatfou.     Ibid  ] 
been  created  which   deprives   the  under-         ^  Hyde  v.  Louis.  State  Ins  Co.,  1  Mart, 

writers  of  the  rights  which  it  is  the  object  410,  N.  S. ;  2  Phil,  on  Ins.  291,  cited  and 

of  the  abandonment  to  secure,  the  owners  afiirmed  in  Phillijjs  v.  Naire,  11  Jur.  455. 
may  abandon  and  recover  for  a  total  loss,         ^  Irvins  v.  Manning,  2  M.  G.  &  Sc.  784, 

though  the  costs  of  repair  be  less  than  fifty  788,  per  Pollock,  C.  B. 
per  cent  of  the  value  of  the  vessel.     By         ^  1  Phillips  on  Ins.  449,  450 ;  Smith  v. 

Thomas,  J.,  in  Allen  v.  Commercial  Ins.  Robertson,  2  Dow,   474 ;   Brotherston  v. 

Co.,  uhi  supra.     When  tlie  sale  and  aban-  Barber,  5  M.  &  S.  418. 
donrnent  has  been  made  for  certain  stated         *  Hudson  v.  Harrison,  3  B.  &  B.  97 ;  3 

reasons,  it  is  not  competent  to  show  that  Moore,  288,  S.  C. ;  Smith  v.  Robertson,  2 

other  causes  existed  tlian  those  for  which  Dow,  474.     The  observation  of  Story,  J., 

the  sale  and  abaiulonment  werein  fact  made  in  Peele  v.  Merchants'  Ins.  Co.,  3  Mason, 

Allen  V.  Commercial  Ins.  Co.,  ubi  supra.  81,  that  the  silence  of  the  underwriter  ia 

Where   the  i)olicy  is  upon  cargo,  after  not,  per  se,  proof  of  his  acceptance,  is  not 

any  considerable  poition  of  the  goods  in-  conceived  to  impugn  the  rale  in  the  text. 


PART  IV.]  INSURANCE.  iJ47 

§  393.  The  amount  of  a  loss  may  be  proved  by  an  adjustment, 
signed  by  the  underwriters,  which  is  usually  indorsed  on  the 
back  of  the  policy.  But  the  form  of  it  is  not  material;  for  the 
acceptance  of  an  abandonment  is  an  admission  of  the  loss  as 
total. 1  In  whatever  form  the  adjustment  may  be,  it  is  an 
admission  of  all  the  facts  necessary  to  be  proved  by  the  assured 
to  entitle  him  to  recover  in  an  action  on  the  policy.  It  is  not, 
however,  conclusive ;  but,  like  other  prima  facie  evidence,  it 
throws  the  burden  of  proof  on  the  other  party,  to  impeach  it; 
which  he  may  do  by  showing  that  it  was  made  under  a  mistake  of 
fact,  or  procured  by  fraud  in  the  assured  or  his  agent.^  In  cases 
proper  for  general  average,  it  is  the  duty  of  the  master,  on  his 
arrival  at  the  foreign  port  of  destination,  to  have  the  loss  ad- 
justed by  a  competent  person,  according  to  the  usage  and  law 
of  the  port ;  and  being  thus  fairly  made,  it  is  conclusive  and  bind- 
ing upon  all  the  parties  concerned.^ 

§  394.  The  clause  usually  inserted  in  policies,  that  the  money 
is  to  be  paid  in  a  certain  number  of  days,  after  preliminary  proof 
of  loss,  is  liberally  expounded,  requiring  only  the  best  evidence 
of  the  fact  in  possession  of  the  party  at  the  time.  Proof,  in  the 
strict  and  legal  sense,  is  not  required.  Thus,  the  protest  of  the 
master,'*  or  a  copy  of  the  letter  from  him  to  the  correspondents 
of  the  owner  transmitted  by  them  to  the  owner,  and  stating  the 
loss,^  or  the  report  by  a  pilot  of  the  capture  of  the  ship,^  have 

See  ante,  Vol.  1,  §  197  ;  Poele  v.  Suffolk  cases  there  cited ;  Dow  v.  Smith,  1  Caines, 

Ins.  Co.,  7  Pick.  254  ;  Reynolds  v.  Ocean  R.  32 ;    Bilbie  v.  Lumley,  2  East,   469 ; 

Ins.  Co.,  22  Pick.  191;  1  Met.  160.     [A  Faugier   v.    Hallett,   2   Johns.   Cas.   233; 

general  average  loss  upon  the  subject  in-  Ilaigh  v.  De  la  Cour,  3  Campb.  319.     An 

sured  is  to  be  paid  in  full  by  the  insurer,  agent  who  has  authority  to  sul)scribe  a 

witliout  deduction  and  without  reference  policy  has  also  authority  to  sign  an  ad- 

to    the   question  whether  the  vessel,  if  it  justment  of  loss.     Richardson  v.  Andei'- 

happen   to  be  a  vessel,  can  or  cannot  be  son,   1    Campb.  43,   n. ;  The  Chesapeake 

repaired,  and  at  what  cost  in  reference  to  Ins.  Co.  v.  Stark,  6  Cranch,  268. 

her  value.     The  distinguishing  character-  ^  Strong  v.  New  York  Firera.  Ins.  Co., 

istic  of  such  a  loss  is  that  it  is  voluntarily  11  Johns.  323  ;  Simonds  v.  White,  2  B.  & 

incurred  by  the  owner  of  one  of  the  sub-  C.  805,  4  Dowl.  &  Ry.  375 ;  Daglish  v. 

jects  at  risk  for  the  benefit  of  all.     The  Davidson,  5  Dowl.   &  Ry.  6  ;  Loring  o. 

cutting  away  the  masts  of  a  vessel,  and  Neptune  Ins.  Co.,  20  Pick.  411.     But  it 

the  consequent  damages,  are  general  aver-  does  not  bar  the  ship-owner  from  claiming 

age  charges,  although  the  vessel  is  in  bal-  of  the  underwriter  a  loss  not  included  ia 

last,  and  there  is  therefore  neither  freight  the  foreign  adjustment.     Thornton  v.  Unit- 

nor  cargo  to  contribute.     Greely  v.   Tre-  ed  States  Ins.  Co.,  3  Fairf.  150;  3  Kent, 

mont  Ins.  Co.,  9  Cush.  415.]  Coram.  224. 

1  Bell  V.  Smith,  2  Johns.  98.  An  *  Lenox  v.  United  Ins.  Co.,  3  Johns, 
award  of   arbitrators    is    an   adjustment.  Cas.  224. 

Newburv  port  Ins.  Co.  v.  Oliver,  8  Mass  402.         ^  Lawrence  v.  Ocean  Ins.  Co.,  11  Johns. 

2  Hee'iu.te,  Vol.  1,  §§  209,  212  ;  3  Kent,     241. 

Comm.  339  ;  1  Phillips  on  Ins.  500  -  502  ;        ^  Munson  v.  New  Eng.  Ins  Co.,  4  Mass- 
Marshall  on  Ins,  642-647  (3d  edit.)  and     88. 


348  LAW   OF  EVIDENCE.  [PART  IV. 

been  held  sufficient,  that  being  the  best  evidence  the  party  pos 
sessed.^  Under  a  policy  containing  this  clause,  proof  of  the  loss 
alone  has  been  held  sufficient,  without  any  proof  of  interest ;  ^ 
but  if  evidence  of  interest  is  required,  the  production  of  the  usual 
mercantile  documents,  such  as  the  bill  of  lading,  invoice,  bill 
of  parcels,  and  the  like,  is  sufficient.^  And  whatever  be  the 
nature  of  the  preliminary  proof,  if  the  underwriter  does  not 
object  to  its  sufficiency  at  the  time  it  is  exhibited,  but  refuses 
to  pay  the  loss  on  some  other  specified  ground,  the  objection  of 
insufficiency  in  the  proof  is  waived.^ 

§  395.  The  specific  defences  usually  made  to  an  action  on 
a  marine  policy  are  of  two  classes;  namely,  (1.)  Misrepresen- 
tation or  Concealment  of  material  facts,  by  the  assured,  during  the 
time  of  treating  for  the  policy ;  (2.)  Breach  of  Warranty. 

§  396.  And  first,  as  to  Misrepresentation  and  Concealment.  As 
this  contract  requires  the  highest  degree  of  good  faith,  and  the 
most  delicate  integrity,  the  assured  is  held  bound  to  communicate 
to  the  underwriter,  at  the  time  of  the  treaty,  every  fact  which 
is  in  truth  material  to  the  risk,  and  within  his  knowledge,  whether 
he  deems  it  material  to  the  risk  or  not ;  and  all  the  information 
he  possesses  in  regard  to  material  facts,  though  he  does  not  know 
or  believe  it  to  be  true,  and  it  proves  to  be  false.^  And  where 
there  are  successive  underwriters  on  the  same  policy,  a  misrepre- 
sentation to  the  first  has  been  held  a  misrepresentation  to  all.^ 
Nor  does  innocency  of  intention,  or  mistake,  on  the  part  of  the 
assured,  make  any  difference ;  for  the  underwriter  is  equally 
injured,  whether  he  was  misled  through  ignorance  or  fraud,  and 
the  policy,  in  either  case,  is  void.'^     But  a  representation,  though 

^  Ibid.     See  also  Barker  v.  Phenix  Ins.  Phillips  on  Ins.  ch.  vii. ;    Alston  v.  Me- 

Co.,  8  Johns.  307  ;  Levering  v.  Mercantile  chanics'  Ins.  Co.,  4  Hill,  N.  Y.  Rep.  329 ; 

Ins.  Co.,  12  Pick.  348.  Bryant  v.  Ocean  Lis.  Co.,  22  Pick.  200; 

2  Talcotti;.  Marinelns.  Co.,2  Johns.  130.  Curry  v.  Com'th  Ins.  Co.,  10  Pick.  535; 

^  Johnston   v.   Columbian  Ins.    Co.,   7  Seton  v.  Low,  1  Johns.  Cas.  1. 
Johns.  315.  6  Barber    v.    Fletcher,    1    Dons:.    305 

*  Vossi;.  Robinson,  9  Johns.  192;  Martin  Marsden  v.  Reid,  3  East,  573  ;  1  Pliillips 

c  Fishing  Ins.  Co.,  20  Pick.  389.     [*  The  on  Ins.  84  ;    Pawson  v.   Watson,    Cowp. 

affidavits  and  accounts  of  loss  offered  as  787;  Marshall  on  Lis.  454  (3iledit.).    But 

preliminary  proofs   are   only  evidence  of  not  as  to   an  underwriter  on  a  different 

compliance  with  the  requirements  of  the  policy,  though  on  the  same  risk.     Elting 

policy  in  that  respect,  and  not  proof  for  tlie  v.  Scott,  2  Johns.   157.     The  doctrine  of 

insured  of  the  amount  of  his  loss.     New-  the   text,  however,  has   been   questioned. 

mark  v.  Liverpool  Ins.  Co.,  30  Miso.  160.  See  Forrester  v.  Pigou,  1  M.  &  S.  9  ;  Brine 

But  SCO  Moor  v.   Protection  Ins.  Co.,  29  v.  Featherstone,  4  Taunt.  871. 
Maine,  97.]  7  Bryant  v.   Ocean  Ins.  Co.,  22   Pick. 

6  Lynch    v.   Hamilton,  3   Taunt.   37  ;  200 ;  Clark  v.  Manuf.  Ins.  Co.,  2  W.  &  M. 

Maishall  on  Ins.  449-478  (3d  edit.) ;   1  472;  8  How.  S.  C.  R.  235,  S.  C 


PART  IV.]  INSURANCE.  349 

untrue,  will  not  avoid  the  policy,  if  the  underwriter  is  not 
deceived  by  it ;  as,  where  a  ship  is  cleared  for  one  port,  with 
liberty  to  touch  at  an  intermediate  port,  but  intending  to  go 
direct  to  the  port  of  ultimate  destination,  such  being  the  known 
and  uniform  course  of  trade  at  the  time,  for  the  sake  of  avoiding 
the  operation  of  certain  foreign  regulations.^  And  it  is  in  all 
cases  sufficient  if  the  representation  be  true  in  substance.  If 
it  is  made  by  an  agent,  he  also  is  bound  to  communicate  all 
material  facts  within  his  own  knoVt^ledge,  and  all  the  information 
he  has  received,  in  the  same  manner  as  if  he  were  the  principal ; 
and  this,  whether  the  principal  had  knowledge  or  information 
of  the  facts  or  not.^ 

§  397.  On  the  other  hand,  the  assured  is  not  hound  to  state  his 
opinions,  or  belief,  or  conclusions,  respecting  the  facts  communi- 
cated ;  nor  to  communicate  matters  which  lessen  the  risk ;  or 
which  are  known,  or  ought  to  be  known,  to  the  underwriter ;  or 
which  are  equally  open  to  both  parties  ;  or  which  are  general  topics 
of  speculation ;  or  are  subjects  of  warranty.^  And  mere  silence 
concerning  a  material  fact  known  to  the  underwriter  is  not  a  cul- 
pable concealment,  if  no  inquiry  is  made  on  the  subject.*  The 
question  whether  the  facts  not  disclosed  were  material  to  the 
risk  is  for  the  jury  to  determine ;  ^  and  to  this  point  the  opin- 
ions of  others,  however  experienced  in  sea  risks,  are  not  admissi- 
ble,^ unless,  perhaps,  where  the  materiality  is  purely  a  question  of 
science.'^ 

§  398.  The  defence  of  concealment  being  nearly  allied  to  the 
charge  of  fraud,  the  burden  of  proof  is  upon  the  underwriters,  to 
establish,  both  the  existence  of  the  fact  concealed,  and  its  mate- 
riality to  the  risk  ;  but  the  latter  may  be  inferred  from  the  nature 
of  the  fact  itself.*  If  the  fact  concealed  was  a  matter  of  general 
notoriety  in  the  place  of  residence  of  the  assured,  this  may  be 

1  Planche  v.  Fletcher,  1  Dotig.  251.  402.     Aid  see  Laidlow ?;.  Organ,  2  "Wheat. 

2  Marshall  on  Ins.  464  (3d  ed.).     The     178,  195. 

representation   by  a  broker,  made  at  the  ^  Littledale  v.   Dixon,  1  New  Rep.  151 

time  of  treating  for  the  policy,  is  binding  (4  B.  &  P.  151);  McDowell  v.  Fraser,  I 

on   the   assured,    unless   it  is    withdrawn  Doug.  260 ;  New  York  Ins.  Co.  v.  Wal- 

or  qualified   before  the  execution  of  the  den,  12  Johns.  513. 

policy.     Edwards  v.  Footner,    1    Campb.  ^  See  a/!te,  Vol.  1,  §  441. 

&30.  T  Berthon  v.  Loughman,  2  Stark.  R, 

8  Marshall    on     Ins.    453  -  460,    472,  258  ;  2  Stark.  Evid.  649. 

473    (3d  edit.)  ;    Walden    v.   New  York  ^  Tidmarsh  v.  Washington  Ins.  Co.,  4 

Ins.    Co.,    12    Johns.    128;  Bell    v.   Bell,  Mason,  439,  441,  per  Story,  J.;  Fiske  v. 

2   Campb.  475,   479;  1    Phillips  on   Ins.  New  England  Ins.  Co.,  15  Pick.  310,  316  ; 

103.  2  Phillips   on    Ins.    504;    ante,    Vol.    1, 

*  Green  u.  Merchants'  Ins.  Co.,  10  Pick.  §§  34,  35,  80. 


350  LAW   OF  EVIDENCE.  [PART  IV. 

shown   to  the  jury,  as   tending  to  prove   that  the  assured  had 
knowledge  of  the  fact.^ 

§  399,  Secondly,  as  to  breach  of  warranty.  Besides  the  express 
loajTatities,  frequently  inserted  in  policies  of  insurance,  such  as, 
that  the  ship  was  safe,  or  sailed,  or  was  to  sail  on  a  given  day, 
or  should  sail  with  convoy,  or  that  the  property  was  neutral;  there 
are  certain  warranties  implied  by  law  in  every  contract  of  this  sort, 
namely,  that  the  ship  shall  be  seaworthy  when  she  sails ;  that  she 
shall  be  documeyited  and  navigated  in  conformity  with  her  national 
character,  and  with  reasonable  skill  and  care  ;  that  the  voyage  is 
lauful  and  shall  be  latvfully  performed;  and  that  it  shall  be 
pursued  in  the  usual  course,  without  wilful  deviation.  A  breach 
in  any  of  these  is  a  valid  defence  to  an  action  on  the  policy .^ 

§  400.  The  warranty  of  seaworthiness  imports  that  the  ship  is 
stanch  and  sound,  of  sufficient  materials  and  construction,  with 
sufficient  sails,  tackle,  rigging,  cables,  anchors,  stores,  and  sup- 
plies, a  captain  of  competent  skill  and  capacity,  a  competent  and 
sufficient  crew,  a  pilot,  when  necessary,  and,  generally,  that  she 
is  in  every  respect  fit  for  the  voyage  insured.^  And  neither  the 
innocence  nor  ignorance  of  the  insured,  nor  the  knowledge  of  the 
underwriter,  will  excuse  a  breach  of  this  warranty.*  The  begin- 
ning of  the  risk  is  the  period  to  which  this  warranty  relates.  If 
the  vessel  subsequently  becomes  unseaworthy,  the  warranty  is  not 
broken,  if  the  assured  uses  his  best  endeavor  to  remedy  the 
defect ;  and  of  a  neglect  to  do  this,  the  underwriter  can  avail  him-' 
self  only  when  a  loss  has  occurred  in  consequence  thereof.^ 

1  2  Phillips  on  Ins.  505;  Livingston  v.  v.  Merchants'  Ins.  Co.,  11  Met.  199.  The 
Delaficld,  3  Caines,  R.  51-5i>,  Brander  word  "seaworthy"  does  not  necessarily 
r.  Ferriday,  16  Louis.  296;  ante,  Vol.  1,  mean  that  the  ship  is  in  a  state  completely 
§  138.  fit  for  sea  navigation,  but  includes  in  it  a 

2  Marshall  on  Ins.  353,  354  (3d  edit.) ;  fitness  for  present  navigation,  either  on  a 
1  Phillips  on  Ins.  112,  113;  Paddock  y.  sea  or  river,  if  about  to  sail,  or  sailing,  on 
Franklin  Ins.  Co.,  11  Pick.  227  ;  Stocker  either,  and  a  condition  of  repair  and  equip- 
V.  Merrimack  Ins.  Co.,  6  Mass.  220  ;  Clove-  ment  fit  for  such  a  port,  if  she  is  then  in 
land  V.  Union  Ins.  Co.,  8  Mass.  308.  port.     Small  v.  Gibson,  3  Eng.  Law  &  P^q. 

'^  1  Phillips  on  Ins.  ch.  7,  §§  1,  2;  Mar-  299  ;  affirmed  in  the  House  of  Lords,  24 

shall  on  Ins.  146  -  IGO  (3d  edit.).  lb.  16.     In  a  time  policy  there  is  no  im- 

*  Marshall  on  Ins.  152-157  (3d  edit.)  ;  plied  warranty  or  condition  that  the  vessel 

Park  on  Ins.  343.  is  seaworthy  at  the  commencement  of  the 

"  1  Phillips  on  Ins.  117,  118;  Deblois  risk  or  term,  wherever  siie  happens  to  he, 

r.  Ocean  Ins.  Co.,  16  Pick.  303  ;  Weir  v.  or  in  whatever  circumstances  she  is  placed 

Aberdeen,  2  B.  &  Aid.  320;  Starbuck  v.  at  the  time.     The  rule  is  otherwise   in  a 

New   England    Ins.    Co.,    19   Pick.   198;  voyage  policy.     Ibid.     See  Jones  y.  Insur- 

Paddock  v.   Franklin  Ins.   Co.,  11  Pick,  ance   Co.,  2  Wallace,  Jr.,  278.]       [*  See 

227;  Copcland  v.  'Naw  Eng.  Ins.  Co.,  2  also   Capen   v.  Washington   Ins.  Co.,  12 

Met.  432;  Watson  v.  Clark,  1  Dow,  344;  Cusb.  517,  Thompson  v.  Hopper,  34  Eng. 

Hollingsworth  v.  Brodrick,  7    A'l.   &  El.  L.  &  Eq.  266,  and  Fawcus  v.  Sarsfield,  Id. 

40;  2N.  &P.  608;  1  Jnr.  4'30  •   (Deshon  277.     In  a  time  policy  on  a  vessel  which 


PART  IV.]  INSURANCE.  351 

§  401.  Where  unseaworthiness  of  the  ship  is  relied  on,  as  a 
non-compliance  with  an  implied  warranty,  the  ship  will  be  pre- 
8umed  seau'ortTiy.  and  to  continue  so,  until  the  contrary  is  proved 
by  the  imderwriter,  or  shown  from  the  evidence  adduced  on  the 
other  side.^  And  this  may  not  only  be  shown  by  any  competent 
direct  evidence,  but  may  be  proved,  inferentially,  by  evidence 
of  the  bad  condition  of  the  ship  soon  after  sailing,  without  the 
occurrence  of  any  new  and  sufficient  cause. ^  After  proof  of  her 
actual  condition,  experienced  shipwrights,  who  never  saw  her, 
may  be  asked  their  opinion,  whether,  upon  the  facts  sworn  to,  she 
was  seaworthy  or  not.^  But  a  sentence  of  condemnation  for 
unseaworthiness,  in  a  foreign  Yice-Admiralty  Court,  after  a  sur- 
vey, though  conclusive  to  prove  the  fact  of  condemnation,  has 
been  held  inadmissible  as  evidence  of  the  fact  recited  in  it,  that, 
from  prior  defects,  unseaworthiness  might  be  presumed ;  nor 
are  the  reports  of  surveyors  abroad  admissible  evidence  of  the 
facts  contained  in  them.* 

§  402.  If  the  defence  rest  on  the  violation  of  law  by  the  as- 
sured, whether  in  the  object  or  the  conduct  of  the  voyage,  such  as 
non-compliance  with  the  convoy  act,  or  destination  to  a  hostile 
port ;  or,  on  any  neglect  of  duty  in  the  master ;  the  burden  of 
proof  is  on  the  underwriter ;  it  being  always  presumed  that  the 
law  has  been  observed,  and  that  duty  has  been  done,  until  the 
contrary  is  shown  .^  The  want  of  neutral  character  is  usually 
shown  by  a  decree  of  condemnation  for  that  cause ;  and  to  this 
point,  the  sentence  of  a  foreign  tribunal  of  competent  jurisdiction, 
is,  as  we  have  seen,  conclusive.^    The  fabrication  and  spoliation 

at  the  commencement  of  the  risk  is  in  a  pute  the  seaworthiness.    Parfitt  v.  Thomj)- 

foreign  port,  where   full   repairs   may  be  son,  13  M.  &  W.  392. 

made,  there  is  an  implied  warranty  of  sea-  ^  Marshall  on  Ins.  157  ;  Watson  v.  Clark, 

worthiness,  both  for  port  and  in  setting  out  1  Dow,  344  ;  Parker  v.  Potts,  3  Dow,  23  ; 

therefrom.     Hoxie  v.  Pacific  Mut.  Ins.  Co.,  Douglas  v.   Scougall,  4  Dow,  269  ;  Park 

7  Allen,  211.     In  this  case  the  authorities  on  Ins.  333  ;  1  Phillips  on  Ins.  116. 

are  very  fully  collected  and  considered  in  ^  Beckwith  v.  Sydebotham,  1    Campb. 

the  arguments  of  counsel  and  the  opinion  117  ;  Thornton?;.  Royal Exch.  Co., Peake's 

of  Bigelow,  C.  J.]  Cas.  25;  ante,  Vol.  1,  §  440. 

'  Parker  v.  Potts,  3  Dow,  23;  Taylor  *  Marshall  on  Ins.  151,  152  (3d  edit.); 

I'    Lowell,   3   Mass.   347;    Barnewall    v.  Wriffht  v.   Barnard,  Id.  p.  152;    Dorr  v. 

Church,  1  Caines,  R.  2.34,  246  ;  P.iddock  Pacific  Ins.  Co.,  7  Wheat.  581  ;  Watson  v. 

V.  Franklin  Ins.  Co.,  11   Pick.  227,  236,  North  Amer,  Ins.  Co.,  2  Wash.  C.  C.  R. 

237  ;  Martin  v.  Fishing  Ins.  Co.,  20  Pick.  152  ;    Saltus  v.  Commercial  Ins.  Co.,  10 

389  ;    Talcot  v.   Commercial  Ins.   Co.,   2  Johns.  58. 

Johns.  124.     But  see  Tidmarsh  v.  Wash-  ^  Thornton  v.  Lance,  4  Campb.   231; 

ington  Ins.  Co.,  4  Mason,  441,  per  Story,  ante,  Vol.  1,  §§  34,  35,  80,  81 ;  2  Phillip* 

J.     If  the  underwriters  admit,  in  the  pol-  on  Ins  503,  504. 

icy,  that  the   ship  is  seaworthy,  they  are  ^  Ante,  Vol.  1,  §  541. 
bound  by  the  admission,  and  cannot  dis- 


862  LAW   OF   EVIDENCE.  [PART  IV. 

of  documents  and  papers  are  also  admissible  evidence  to  the  same 
point,  though  not  conclusive  in  law.^  If  the  defendant  would 
impugn  the  plaintiff's  right  to  recover  for  a  loss  by  capture,  on 
the  ground  that  the  sentence  of  condemnation,  rendered  in  a 
foreign  court,  appears  to  have  been  founded  on  the  want  of 
documents,  not  required  by  the  law  of  nations,  which  the  plaintiff 
ought  to  have  provided  ;  the  burden  of  proof  is  on  the  defendant, 
to  show  the  foreign  law  or  treaty,  which  rendered  it  necessary  for 
the  plaintiff  to  provide  such  documents.^ 

§  403.  The  defence  of  deviation  is  made  out  by  proof  that  there 
has  been  a  voluntary  departure  from,  or  delay  in,  the  usual  and 
regular  course  of  the  voyage  insured,  without  necessity  or  rea- 
sonable cause.  The  ordinary  causes  of  necessity,  which  justify  a, 
deviation,  are,  stress  of  weather;  want  of  necessary  repairs,  or 
men  ;  to  join  convoy ;  to  succor  ships  in  distress  ;  to  avoid  capture, 
or  detention ;  sickness  of  the  captain  or  crew ;  mutiny ;  and  the 
like.^  And  hence  the  objects  or  causes  of  deviation  are  dis- 
tributed into  two  general  classes ;  namely,  first,  to  save  life,  and 
secondly,  to  preserve  the  property  intrusted  to  the  master's  care.'* 

§  404.  In  the  second  place,  as  to  Insueance  against  Fire. 
Here,  the  same  general  principles  apply  as  in  the  case  of  Marine 
Insurance.  The  declaration  contains  similar  allegations  as  to 
the  contract,  the  performance  of  conditions,  and  the  loss ;  and 
the  points  to  which  the  evidence  is  to  be  applied  are  generally  the 
same,  differing  only  so  far  as  the  subjects  differ  in  their  nature. 
The  policy  is  to  be  produced  and  proved  as  in  other  cases,  to- 
gether with  proof  of  the  payment  of  the  premium,  and  of  the 
plaintiff's  interest  in  the  property,  of  his  compliance  with  all 
the  conditions  precedent,  and  of  the  loss,  by  fire,  within  the 
period  limited  in  the  policy.^ 

1  Ante,  Vol.  1,  §  37.  Ins.  Co.,  30  Penn.  St.  334.     For  the  di.s- 

2  Le  Chemiuant  v.  Pearson,  4  Taunt,  tinction  between  a  deviation  and  an  ahaa- 
367.  donment    of    a    voya.ae,    see    Merrill   v. 

3  Marshall  on  Ins.  177-206  (3d  ed.) ;  Boylston  F.  &  M.  Ins.  Co.,  3  Allen,  247.] 
iPhillipsonlns.  179-216;  Coffin V. New-  ■'Turner  v.  Protection  Ins.  Co.,  12 
buryi)ort  Ins.  Co.,  9  Mass.  436  ;  Stocker  Shepl.  515. 

V.  Harris,  3  Mass.  409.     Putting  into  a  ^  gee  Ellis  on  Fire  and  Life  Insurance, 

port  to  put  a  vessel  in  good  trim,  if  it  could  pp.    24-58,    61-66,  93,  94,  in  the  Law 

not  bo  conveniently  done  at  sea,  is  not  a  Library,  Vol.4  ;  3  Kent,  Comm.  370-376  ; 

deviation.      Chase   v.   Eagle  Ins.    Co.,   5  Lawrence  v.   Columbian  Ins.    Co.,  2  Pet. 

Pick.  51.     [*  A  mere  intention  to  deviate,  25  ;  10  Pet.  507. 

formed  after  the  ship  started,  is  of  no  con-  The  following  is  the  usual  form  of  a 

sequence  if  the  ship  be  lost   before   she  count  upon  a  valued  Firo  Policy  : — "For 

came   to    the    dividing    point.      3    Kent,     that   the  plaintiff,  on ,  was  mterested 

Comm.  317  ;  Winter  v.  Delawaj-e  Mut.  Saf     in  a  certain   dwelling-house,  in ,  then 


PART  IV.J 


INSURANCE. 


353 


§  405.  The  proof  of  loss  must  show  an  actual  ignition  by  fire; 
damage  by  heat  alone,  without  actual  ignition,  not  being  covered 
by   the   policy.^      And   as   to   the   plaintiff's   interest,  it  is   not 


occupied  by  him,  to  the  valne  of dol- 
lars, and  so  continued  interested  until  the 
destruction  of  said  house  by  fire,  as  herein- 
after mentioned:  —  and  the  said  [defend- 
ants), on  the  same  day,  in  consideration  of 
a  premium  in  money  then  and  there  paid 
to  them  therefor  by  the  plaintiff,  made  a 
policy  of  insurance  upon  the  said  dwelling- 
house,  and  thereby  promised  the  plaintiff 

to  insure dollars  thereon,   from   said 

day  of imtil  the day  of , 

against  all  such  immediate  loss  or  damage 
as  should  happen  to  said  dwelling-house 
by  fire,  other  tiian  fire  happening  by  means 
of  any  invasion,  insurrection,  riot,  or  civil 
commotion,  or  of  any  militai-y  or  usurped 
power,  to  the  amount  aforesaid,  to  be  paid 
to  the  plaintiff  in  sixty  days  after  notice 
and  proof  of  the  same  ;  upon  condition 
that  the  plaintiff,  in  case  of  such  loss, 
should  forthwith  give  notice  thereof  to  said 
Company ;  and  as  soon  thereafter  as  pos- 
sible should  deliver  in  a  particular  account 
thereof  under  his  hand,  and  verified  by  his 
oath  or  affirmation  ;  and  if  required  should 
produce  his  books  of  account  and  other  prop- 
er vouchers ;  and  should  declare  on  oath 
whether  any  and  what  other  insurance  was 
made  upon  said  property;  and  should  pro- 
cure a  certificate  under  the  hand  of  a  magis- 
trate, notary-public,  or  clergyman  (most 
contiguous  to  the  place  of  the  fire,  and  not 
concerned  in  the  loss,  nor  related  to  the 
plaintifl"),  that  he  was,  at  the  time  of  certi- 
fying, acquainted  with  the  character  and 
circumstances  of  the  plaintiff,  and  knew, 
or  verily  believed,  that  he  really,  and  by 
misfortune,  and  without  fraud  or  evil  prac- 
tice, had  sustained  by  such  fire  loss  and 
damage  to  the  amount  therein  mentioned  : 
-  —  and  the  plaintiff  avers  that  afterwards, 
md  before  the  expiration  of  the  time  lim- 
ited in  said  policy,  to  wit,  on  the day 

of ,  the  said  dwelling-house  was  acci- 
dentally, and  by  misfortune,  totally  con- 
sumed by  fire ;  of  which  loss  the  plaintiff 
forthwith  gave  notice  to  said  (defendants), 
and  as  soon  as  possible  thereafter,  to  wit, 
on ,  delivered  to  them  a  particular  ac- 
count thereof,  under  his  hand,  and  verified 
by  his  oath,  and  did  at  the  same  time  de- 
clare on  his  oath  that  no  other  insurance 

was  made  on  said  property ;  [except ] 

and  afterwards  on ,  did  procure  a  cer- 
tificate under  the  hand  of  [A.  B.]  Esquire, 
a  magistrate  most  contiguous  to  the  place 
of  said  fire,  not  concerned  in  said  loss,  nor 
related  to  the  plaintiff,  that  he  was  then 
acquainted  with  the  character  and  circum- 
VOL.  II.  23 


stances  of  the  plaintiff,  and  verily  believed 
that  he  really,  and  by  misfortune,  had  sus- 
tained, by  sa'id  fire,  loss  and  damage  to  the 
amount  of  the  sum  in  said  certificate  men- 
tioned, to  wit, ,  and  on  the  same  day 

the  plaintiff  produced  and  delivered  said 
certificate  to  the  said  (defendants).  Yet, 
though  requested,  and  though  sixty  days 
after  such  notice  and  proof  of  said  loss 
have  elapsed,  the  said  (defendants)  have 
never  paid  either  of  the  sums  aforesaid  to 
the  plaintiff,"  &c.  See,  as  to  stating  the 
limitations  and  qualifications  of  the  con- 
tract, 1  Chittv's  PI.  267-269,  316  ;  Clark. 
V.  Gray,  6  East,  564;  Howell  v.  llich- 
ards,  11  East,  633;  Hotham  v.  E.  Ind. 
Co.,  1  T.  R.  638  ;  Browne  v.  Knill,  2  B. 
&  B.  395  ;  Tampanv  v.  Burnard,  4  Campb. 
20;  6  Vin.  Ab.  4.50,  pi.  40;  Anon.  Th. 
Jones,  125;  Butterworth  w.  Lord  Despen. 
cer,  3  M.  &  S.  150.  And  see,  contra,  8 
Conn.  459. 

1  Austin  V.  Drew,  4  Campb.  360 ;  6 
Taunt.  436  ;  Hillier  v.  The  Alleuhany  Ins. 
Co.,  3  Barr,  470.  And  see  Babcock  v. 
The  Montgomery  Ins.  Co.,  6  Barb.  S.  C. 
R.  637,  where  the  position  in  the  text  is 
fully  sustained.  And  see,  accordingly, 
Angell  on  Fire  Ins.  §§  111  -  129,  where  the 
authorities  on  this  point  are  collefteii.  In 
Illinois,  however,  where  the  plaintiff's 
goods,  which  were  insured  "against  loss 
or  damage  by  fire,"  were  damaged  by  the 
smoke  from  an  adjoining  building  which 
was  on  fire,  and  by  the  water  thrown  in 
extinguishing  it,  the  goods  having  been 
removed  from  the  store  in  consequence  of 
the  imminent  danger ;  but  no  part  of  the 
plaintiff's  store  was  burnt,  though  the  heat 
was  so  great  as  to  crack  the  window-glass 
and  scorch  the  window-frames  through  the 
iron  shutters,  and  to  destroy  the  paint  on 
the  roof;  a  majority  of  the  court  held,  that 
the  loss  was  within  the  terms  of  the  doIi-7; 
the  chief  justice  dissenting.  Case  v.  Tnc 
Hartford  Fire  Ins.  Co.,  13  111.  Kep.  676. 
The  court,  in  this  case,  denied  the  sound- 
ness of  the  position  in  the  text.  Idto  qnetre. 
If  the  loss  is  occasioned  by  the  mere  force 
of  lightning,  without  actual  combustion,  it 
is  not  covered  by  a  policy  against  losses 
"  by  fire,"  or  '•  by  reason  or  by  means  of 
fire."  Kennison  v.  Merrimack  Co.  Ins. 
Co.,  14  N.  Hamp.  341  ;  Babcock  v.  Mont- 
gomery Co.  Ins.  Co.,  6  Barb.  S.  C.  K. 
637.  If  the  fire  was  caused  by  mere  negli- 
gence of  the  assured,  it  is  still  covered  by 
the  policv.  Shaw  v.  Robberds,  6  Ad.  & 
JEl.  75 ;    Waters  v.  Merchants'  Ins.   Co. 


354 


LAW   OF  EVIDENCE. 


[part  IV. 


necessary  that  it  be  absolute,  unqualified,  or  immediate  ;  a  trustee, 
mortgagee,  reversioner,  factor,  or  other  bailee,  being  at  liberty  to 
insure  their  respective  interests,  subject  only  to  the  rules  adopted 
by  the  underwriters,  which  generally  require  that  such  interests 
be  distinctly  specified.^     But  a  policy  against  fire  is  a  personal 


11  Peters,  213  ;  3  Kent,  Comm.  374.  But 
tho  assured  may  be  guilty  of  such  miscon- 
duct, not  amounting  to  a  fraudulent  intent 
to  burn  the  building,  as  to  preclude  him 
from  recoverini;  for  its  loss  by  fire.  In 
Chandler  v.  AVorcester  Ins.  Co.,  3  Cush. 
328,  where  evidence  of  such  misconduct 
was  offered  in  the  court  below  and  rejected, 
a  new  trial  was  ordered  for  that  cause ; 
but  the  facts  proposed  to  be  proved  are  not 
stated  in  the  report.  The  general  doctrine 
on  this  subject  was  stated  by  Shaw,  C.  J., 
as  follows  :  "  The  general  rule  unquestion- 
ably is,  in  case  of  insurance  against  fire, 
that  the  carelessness  and  negligence  of  the 
agents  and  servants  of  the  assured  consti- 
tute no  defence.  Whether  the  same  rule 
will  apply  equally  to  a  case  where  a  loss 
has  occurred  by  means  which  the  assured 
by  ordinary  care  could  have  pi'evented  is 
a  different  question.  Some  of  the  cases 
countenance  this  distinction.  Lyon  v. 
Mells,  5  East,  428;  Pipon  v.  Cope,  1 
Campb.  434. 

"  But  it  is  not  necessary  to  decide  this 
question.  The  defendants  offered  to  prove 
gross  misconduct  on  the  part  of  the  assured. 
How  this  misconduct  was  to  be  shown, 
and  in  what  acts  it  consisted,  is  not  stated. 
The  question  then  is,  whether  there  can 
be  any  misconduct,  iiowever  gross,  not 
amounting  to  a  fraudulent  intent  to  burn 
the  building,  which  will  deprive  the  assured 
of  his  riglit  to  recover.  We  think  there 
may  be.  By  an  intent  to  burn  the  build- 
ing, we  understand  a  purpose  manifested 
and  followed  by  some  act  done  tending  to 
carry  that  purpose  into  effect,  but  not  in- 
cluding a  mere  nonfcas.ance.  Suppose  the 
assured,  in  his  own  house,  sees  the  burning 
coals  in  the  fireplace  roll  down  on  to  the 
wooden  floor,  and  does  not  brush  them  up  ; 
this  would  be  mere  nonfeasance.  It  would 
not  prove  an  intent  to  burn  the  building  ; 
but  it  would  show  a  culpable  recklessness 
and  indifference  to  the  rights  of  others. 
Suppose  the  premises  insured  should  take 
fire,  and  the  flame  begin  to  kindle  in  a 
small  spot  which  a  cup  of  water  would 
put  out ;  and  the  assured  has  the  water  at 
hand,  but  neglects  to  put  it  on.  This  is 
mere  nonfeasance ;  yet  no  one  would  doubt 
that  it  is  culpable  negligence,  in  violation 
of  the  maxim,  Sic  ntere  tuo  ut  alienum  non 
Icedus.  To  what  extent  such  negligence 
must  go,  iu  order  to  amount  to  gross  mis- 


conduct, it  is  difficult,  by  any  definitive  or 
abstract  rule  of  law,  independently  of  cir- 
cumstances, to  designate.  The  doctrine 
of  the  civil  law,  that  crassa  neglic/entia  was 
of  itself  proof  of  fraud,  or  equivalent  to 
fraudulent  purpose  or  design,  was  no  doubt 
founded  in  the  consideration,  that,  although 
sucli  negligence  consists  in  doing  nothing, 
and  is  therefore  a  nonfeasance,  yet  the 
doing  of  nothing,  when  the  slightest  care 
or  attention  would  prevent  a  great  injury, 
manifests  a  willingness,  diflering  little  in 
character  from  a  fraudulent  and  criminal 
purpose,  to  commit  such  injury. 

"  Whether  the  facts  relied  on  to  show 
gross  negligence  and  gross  misconduct,  of 
which  evidence  was  offered,  would  have 
proved  any  one  of  these  supposed  ca^es,  or 
any  like  case,  we  have  no  means  of  know- 
ing ;  but  as  they  might  have  done  so,  the 
court  are  of  opinion,  that  the  proof  should 
have  been  admitted,  and  proper  instructions 
given  in  reference  to  it." 

1  Ellis  on  Insurance,  p.  22 ;  Marshal] 
on  Ins.  789  (3d  ed.)  ;  Lawrence  v.  Colum- 
bian Ins.  Co.,  2  Peters,  R.  25,  49  ;  10  Pe- 
ters, R.  507.  [A  mortgagee,  who,  at  his 
own  expense,  insures  his  interest  in  the 
property  mortgaged  against  loss  by  fire, 
without  particularly  describing  the  nature 
of  his  interest,  is  entitled  in  case  of  a  loss 
by  fire,  before  payment  of  the  mortgage 
debt,  to  recover  to  his  own  use  the  amount 
of  the  loss  of  the  insui'crs,  without  first 
assigning  his  mortgage,  or  any  part  of  it, 
to  them.  King  v.  State  Mut.  &c.  Ins.  Co., 
7  Cusli.  4.  Nor  is  the  mortgagee's  right 
to  recover  insurance  on  his  interest  in 
the  property  insured  affected  by  the 
repair  of  the  loss  by  the  owner  of  the 
equity  of  redemption.  Foster  v.  Equitable 
Ins.  Co.,  2  Gray,  216.  See  Dobson  v. 
Land,  8  Hare,  216  ;  13  Law  Reporter,  247. 
Warehousemen  and  wharfingers,  with 
whom  goods  are  deposited,  have  an  insur- 
able interest  in  such  goods,  without  the 
previous  authority  of  the  real  owners,  ot 
notice  to  them  of  such  insurance,  and  such 
goods  are  properly  described  in  the  policy 
as  "  goods  in  trust."  Waters  v.  Monarch, 
&c.  Ins.  Co.,  34  Eng.  Law  &  Eq.  116. 
One  partner  has  an  insurable  interest  in  a 
building  purchased  with  partnership  funds, 
although  it  stands  upon  land  owned  by  the 
other  j)artncr.  Conver  e  u.  Citiiiens',  &c. 
Ins.  Co.,  10  Cush.  37.1 


PART  IV.] 


INSURANCE. 


355 


contract  only ;  and  therefore  if  the  assured  parts  with  all  his 
interest  in  the  property,  before  a  loss  happens,  the  policy  is  at  an 
end ;  though,  if  he  retains  a  partial  or  qualified  interest,  it  will 
still  be  protected.^ 

§  406.   Though  the  plaintiff  must  here  also,  as  in  other  cases, 
show  a  compliance  with  all  precedent  conditions  and  warranties,^ 


1  Mina.  Fire  Ins.  Co.  v.  Taylor,  16 
Wend.  .385  ;  2  Peters,  R.  25 ;  10  Peters,  R. 
507.  Wliere  the  policy  prohibited  any 
assignment  of  the  interest  of  the  assured, 
"unless  by  the  consent  of  the  company, 
manife-sted  in  \vritin<,',"  and  the  secretary, 
on  application  to  him  at  the  office  of  the 
company,  indorsed  and  subscribed  such 
consent  on  the  policy ;  it  was  held,  that 
his  authority  to  do  so,  in  the  absence 
of  evidence  to  the  contrary,  should  be 
presumed ;  and  that,  if  proof  were  ne- 
cessary, evidence  that  he  had  often  indorsed 
such  consent  on  other  policies  would  be 
prima  facie  sufficient.  Conovcr  v.  Mutual 
Ins.  Co.  of  Albany,  3  Denio,  254.  [A  pol- 
icy made  by  a  mutual  fire  insurance  com- 
pany was  assigned  by  the  insured,  with 
the  consent  of  the  company,  to  a  mortga- 
gee of  the  property  insured,  on  his  giving 
a  written  promise  to  pay  fiiture  assess- 
ments, and  that  the  property  should  be 
subject  to  the  same  lien  as  before  for  the 
payment  of  assessments.  This  assign- 
ment was  held  to  constitute  a  new  contract 
of  insurance  between  the  mortgagee  and 
the  insurers,  and  not  to  be  affijcted  by  the 
subsequent  alienation  by  the  mortgagor  of 
his  equity  of  redemption,  nor  by  his  grant- 
ees obtaining  subsequent  insurance  thereon. 
Foster  v.  Equitable,  &c.  Ins.  Co.,  2  Gray, 
216.  The  giving  a  mortgage  of  real  estate, 
made  after  insurance  has  been  eflFected, 
where  the  mortgagee  does  not  take  posses- 
sion, is  not  such  an  alienation  as  will  avoid 
a  policy,  which  is  on  the  (!ondition  that  it 
shall  become  void  in  case  the  property  in- 
sured is  alienated.  Jackson  v.  Mass.  Mut., 
&c.  Ins.  Co.,  23  Pick.  418;  and  there  is 
no  distinction  on  this  point  between  real 
and  personal  property.  Kice  v.  Tower,  1 
Gray,  426 ;  Folsom  v.  Belknap,  &c.  Ins. 
Co.,  10  Foster,  231  ;  Howard  Ins.  Co.  v. 
Bramer,  23  Penn.  State  R.  50;  nor  is  the 
scir.ure  of  the  insured  goods  on  execution 
wi  hout  removing  them  such  an  alienation 
as  will  avoid  such  a  policy.  Ibid.  Frank- 
lin Fire  Ins.  Co.  v.  Findlay,  6  Whart. 
483  ;  nor  is  the  levy  of  an  execution  on 
real  estate,  so  long  as  the  riglit  of  redemp- 
tion remains  in  the  debtor,  such  an  aliena- 
tion as  will  avoid  such  a  policy.  Clark  v. 
New  England,  &c.  Ins.  Co.,  6  Cush.  342. 
The  alienation  of  one  of  several  estates, 


separately  insured  by  the  same  policy,  only 
avoids  such  a  policy  as  to  the  estate  so 
alienated.  Ibid.  It  seems  that  this  in- 
dorsement on  a  policy  of  insurance,  "  for 
value  received,  pay  the  within,  in  case  of 
loss,  to  F.  &  H.,"  made  to  the  purchaser 
of  the  property  insured,  is  rather  an  order 
or  assignment  of  a  right  to  the  money  in 
case  of  loss  than  a  regular  transfer  of  the 
contract  of  insurance.  Fogg  v.  Middlesex, 
&c.  Ins.  Co.,  10  Cush.  337.  As  to  what 
the  assignees  must  show  in  order  to  render 
such  an  assignment  operative,  see  the  same 
case.  See  also  Phillips  v.  Merrimack,  &c. 
Ins.  Co.,  lb.  350.]  [*  Proof  of  an  appli 
cation  for  insurance  and  of  a  policy  issuing 
thereon,  both  of  which  describe  the  prop- 
erty insured  as  the  property  of  the  plain- 
tiffs, is  prima  facie  evidence  of  title  and  of 
an  insurable  interest  in  the  plaintiffs. 
Nichols  V.  Fayette  Ins.  Co.,  1  Allen,  63. 
An  insurance  policy  purported  to  insure 
S .  upon  certain  property  described  as  his ; 
the  amount,  in  case  of  loss,  to  be  paid  to 
W.  In  an  action  of  assumpsit  on  the  pol- 
icy, brought  by  W.  against  the  insurance 
company,  it  was  held  that  parol  evidence 
was  not  admissible  to  show  that  W.  was 
the  real  party  to  the  contract ;  that  the  de- 
fendants had  agreed  to  insure  a  mortgage 
interest  held  by  him,  and  undertook  to  do 
so  by  the  policy  ;  and  that  they  contracted 
with  him  by  the  name  of  S.  Woodbury 
Savings  Bank  v.  Charter  Oak  Ins.  Co., 
29  Conn.  374.] 

^  [Ante,  §§  383,,  384.  "  A  warranty  in  a 
policy  of  insurance  is  an  express  stipula- 
tion," that  something  then  exists,  or  has 
happened,  or  been  done,  or  shall  happen  or 
be  done  ;  and  this  must  be  literally  and 
strictly  complied  with  by  the  assured, 
whether  the  truth  of  the  fact,  or  the  hap- 
pening of  the  event,  be  or  be  not  mulerial 
to  the  risk,  or  be  or  not  connected  with  the 
cause  of  the  loss.  It  is  a  strict  condition. 
Its  effect  is  that  the  assured  takes  on  him- 
self the  responsibility  of  the  truth  of  the 
fact,  or  of  the  happening  or  not  of  such 
contingency;  and  unless  the  warranty  be 
strictly  complied  with,  the  policy  does  not 
take  effect.  It  is  a  condition  precedent, 
and  the  assured  is  estopped  from  denying 
or  asserting  anything  contrary  to  his  ex- 
press warranty.    Blackhurst  v.  Cockell,  3 


356 


LAW   OF   EVIDENCE. 


[part  IV 


yet  if  any  mistake  or  misrepresentation,  in  tliis  or  any  other  case, 
has  been  occasioned  by  the  insurers  themselves  or  their  agents, 


T.  R.  360 ;  De  Hahn  v.  Hartley,  1  T.  R. 
343  ;  Newcastle  Fire  Ins.  Co.  v.  MacMor- 
ran,  3  Dow,  255 ;  Miles  v.  Connecticut 
Mutual  Life  Ins.  Co.,  3  Gray,  580.  But 
whilst  the  law  requires  of  the  assured  a 
strict  and  literal  compliance  with  the  war- 
ranty, whatever  may  be  the  motive  for  in- 
serting it,  so  the  same  rule  of  strict  and 
literal  performance  shall  be  applied  when 
it  operates  in  favor  of  the  assured.  Kem- 
ble  V.  Rhinelander,  3  Johns.  Cas.  134. 
Nothing  is  to  be  added  by  way  of  intend- 
ment or  construction,  when  the  words  are 
clear  and  intelligible,  although  it  may  rea- 
sonably be  inferred  that  some  object  was 
intended  to  be  accomplished  by  the  war- 
ranty, which  a  mere  literal  compliance 
does' not  fully  reach.  Hyde  v.  Bruce,  re- 
ported in  1  Marsh.  Ins.  (3d  ed.)  354."  By 
Shaw,  C.  J.,  in  Forbush  );.  Western  Mass. 
Ins.  Co.,  4  Gray,  337.  This  case  decides 
that  a  statement  in  a  policy  of  insurance 
that  a  certain  sum  is  insured  on  the  same 
property  by  another  company  named,  even 
if  a  warranty,  is  satisfied  by  the  existence 
of  such  insurance  by  tliat  company  at  the 
time  of  issuing  this  policy  ;  although  one 
of  the  conditions  of  that  insurance  be  that 
it  shall  be  annulled  by  any  subsequent  in- 
surance obtained  without  the  consent  of 
that  company,  and  such  consent  be  not  ob- 
tained to  this  insurance.  And  if  such  con- 
sent be  not  obtained,  these  insurers  ai'C 
liable  for  the  whole  amount  of  any  loss, 
notwithstanding  a  provision  in  their  policy 
that,  in  case  of  any  other  insurance,  whether 
prior  or  subsequent,  they  will  not  be  liable 
beyond  the  proportion  which  the  amount 
insured  by  them  bears  to  tlie  whole  amount 
insured. 

The  by-laws  of  a  mutual  insurance  com- 
pany provided  that  the  policy,  which  was 
made  subject  to  the  conditions  and  pro- 
visions of  the  by-laws,  should  be  void  un- 
less the  true  title  of  the  insured  should  be 
expressed  in  the  application.  A  failure  to 
disclose  a  mortgage  of  $800  in  the  ap- 
plication was  held  to  avoid  the  policy. 
Bowditch,  &c.  Ins.  Co.  v.  Winslow,  3 
Gray,  415;  Packard  v.  Agawam,  &c.  Ins. 
Co.,  2  Gray,  334.  So  where  the  applica- 
tion in  answer  to  a  question  stated  that 
there  was  an  encumbrance  on  the  property 
of  "  about  $3,000,"  and  it  was  in  fact 
$4,000,  the  policy  was  held  void.  Hay- 
ward  V.  New  England  Mutual  Ins.  Co.,  10 
Cush.  444  ;  and  where  the  policy  was  on 
real  and  personal  estate,  and  the  applica- 
tion disclosed  an  encumbrance  of  "  about 
$4,000,"  to  A.  B.,  and  the  foct  was  that  there 
was  a  mortgage  to  C.  D.  of  $3,600  on  the 


real  and  personal  estate,  and  another  mort- 
gage on  the  real  estate  to  E.  F.  of  $1,100 
the  policy  was  held  void.  And  it  makes 
no  difference  that  the  insurers  are  an  in- 
corporated company  in  another  State,  and 
so  may  have  no  lien  on  the  property  in- 
sured in  tliis  State.  Davenport  v.  New 
Eng.  Mut.  Ins.  Co.,  6  Cush.  340;  nor 
that  the  mortgage  was  made  before  the 
mortgagor  acquired  his  title,  and  was  not 
recorded  until  after  the  lien  of  the  insur- 
ance company  would  have  attached.  Pack- 
ard V.  Agawam  Mut.,  &c.  Co.,  2  Gray,  334. 
And  where  the  application,  which  the  ap- 
plicant covenanted,  was  a  just,  full,  and 
true  exposition  of  the  condition  and  value 
of  the  property  so  far  as  known,  or  mate- 
rial to  the  risk,  stated  the  value  of  the 
goods  to  be  insured  to  be  from  $2,000  to 
$3,000,  it  was  held,  the  policy  being  an 
open  one,  that  it  was  not  void,  although 
the  insured  knew  that  he  had  not  goods  on 
hand,  at  the  time  of  insurance,  to  tlie 
amount  of  $2,000,  if  such  representation 
was  made  in  good  faith  that  the  stock  on 
hand,  together  with  the  goods  to  be  added 
and  kept  during  the  continuance  of  the 
policy  should  range  in  amount  from  $2,000 
to  $3,000.  Lee  ».  Howard,  &c.  Ins.  Co., 
1 1  Cush.  324.  A  representation  in  an  ap- 
plication for  insurance  against  fire,  that  a 
counting-room  in  the  building  which  con- 
tains tlie  property  insured  is  warmed  by  a 
stove,  and  that  the  stove  and  funnel  are 
well  secured,  does  not  bind  the  insured  to 
keep  the  stove  and  funnel  well  secured 
when  not  in  use.  Loud  v.  Citizens',  &c. 
Ins.  Co.,  2  Gray,  221. 

Where  the  applicant  stated  that  the 
premises  were  his,  without  anything  more 
specific  in  regard  to  his  title,  and  he  had  in 
fact  only  a  bond  for  a  deed,  the  policy  was 
held  void.  Smith  v.  Bowditch,  &c.  Co.,  6 
Cush.  448 ;  Marshall  v.  Columbian  Ins. 
Co.,  7  Foster,  157  ;  Leathers  v.  Ins.  Co.,  4 
lb.  259.  So  where  the  application  repre- 
sents that  the  property  belongs  to  the  in- 
sured only,  and  it  is  in  fact  owned  by  him 
and  another,  and  where  it  is  represented  as 
unencumbered,  and  it  has  been  sold  for 
taxes,  the  policy  is  made  void,  though  the 
misrepresentations  are  not  made  with  a 
knowledge  of  their  ialsity  or  with  an  in- 
tent to  deceive.  Wilbur  v.  Bowditch,  &c. 
Ins.  Co.  10  Cush.  446  ;  Friesmuth  v. 
Agawam,  &c.  Co.,  lb.  587.  So  where  the 
by-laws  in  a  policy  so  made  provide  that  a 
subsequent  insurance  made  by  the  insured 
without  the  consent  of  the  insurers  shall 
avoid  the  policy,  the  jjrocuiing  a  subse- 
quent valid  insurance  annuls  the  policy 


PART  IV.] 


INSURANCE. 


357 


the  assured  is  excused.^  The  usual  stipulation  in  these  policies, 
that  the  insured  shall,  upon  any  loss,  forthwith  deliver  an  ac- 
count of  it,  and  procure  a  certificate  from  the  nearest  clergyman 
or  magistrate,  stating  his  belief  that  the  loss  actually  occurred, 
and  without  fraud,  &c.,  is  a  condition  precedent,  the  performance 
of  which  must  be  particularly  alleged  and  strictly  proved .^  But 
slight  proof  that  the  certifying  magistrate  is  the  nearest  one  is 
sufficient.^  And  it  is  sufficient  if  the  condition  be  performed  in 
reasonable  time.* 

§  407.  In  tlie  estimation  of  damages,  the  question  for  the  jury 
is,  the  actual  loss  of  the  plaintiff ;  which  is  to  be  ascertained  by  the 
expenses  of  restoring  the  property  to  the  condition  in  which  it  was 
before  ;  the  contract  being  one  of  mere  indemnity.  Therefore,  in 
case  of  the  loss  of  a  building  by  fire,  the  assured  cannot  recover 


Burt  V.  People's  Mut.  Ins.  Co.,  2  Gray,  398 ; 
Carpenter!;.  Prov.  Wash.  Ins.  Co.,  16 Pet. 
495,  and  4  How.  U.  S.  224  ;  but  if  the 
subsequent  insurance  is  not  valid,  it  does 
not  avoid  tlie  policy.  Clark  v.  New  Eng. 
Mut.  Fire  Ins.  Co.,  6  Cush.  .342  ;  [*  Hardy 
V.  Union  Mut.  Fire  Ins.  Co.,  4  Allen,  217] ; 
and  this  is  so,  although  the  underwriters 
of  the  void  policy  pay  the  lo.'^s.  Philbrook 
V.  New  Eng.,  &c.  Ins.  Co.,  37  Maine,  137. 
For  cases  in  which  the  insured  have  at- 
tempted to  avoid  the  effect  of  this  stipula- 
tion by  showing  tliat  the  insurers  or  tlicir 
agents  had  notice  of  the  subsequent  insur- 
ance, see  Barrett  v.  Union  Mut.,  &c  Co ,  7 
Cush.  175  ;  Forbes  v.  Agawam,  «&c.  Ins. 
Co.,  9  lb.  470 ;  Worcester  Bank  v.  Hart- 
ford, &c.  Ins.  Co.,  1 1  Cush.  265  ;  Lowell  u. 
Middlesex,  &c.  Ins.  Co.,  8  lb.  127  ;  Schenck 
V.  Mercer  Co.,  &c.  Ins.  Co.,  4  Zabr.  447.  It 
seems,  where  the  subsequent  insurance  is 
the  renewal  of  a  former  policy,  or  a  sub- 
stitute for  it,  that  tlie  rule  is  the  same. 
Burt  V.  People's  Mut.  Ins.  Co.,  2  Gray,  398.] 
[*  Fraud  in  inducing  a  person  to  accept  a 
policy  of  insurance  will  not  render  an  in- 
surance company  liable  in  an  action  of 
contract  upon  it,  if,  by  the  terms  of  the 
policy,  such  action  cannot  be  maintained. 
Tebbetts  v.  Hamilton  Mut.  Ins.  Co.,  3  Al- 
len, 569.  Where  the  policy  contained  this 
clause  in  connection  with  the  description  of 
the  property  insured,  "  This  policy  not  to 
cover  any  loss  or  damage  by  fire  which  may 
originate  in  the  theatre  proper,"  the  bur- 
den of  proof  is  on  the  plaintiff  to  show  a 
loss  not  originating  in  the  theatre  proper. 
Sohier  v.  Norwich  Fire  Ins.  Co.,  1 1  Allen, 
336.] 

1  Newcastle  Fire  Ins.  Co.  v.  MacMorran, 
3  Dow,  255.     See,  as  to  representations,  2 


Phillips   on    Ins.  96-100,    136-142;    3 
Kent,  Comm.  372-375. 

2  Worsley  v.  Wood,  6  T.  K.  710 ;  2  H. 
Bl.  574;  Marshall  on  Ins.  807-811  (3d 
ed.).  [A  policy,  issued  by  a  mutual  fire 
insurance  company,  was  expressly  made 
subject  to  the  provisions,  &c.  of  the  by- 
laws of  the  company,  one  of  which  re- 
quired that  the  insurance  shall  not  be  pay- 
able until  the  insured  shall  have  delivered 
a  particular  account  in  writing  under  oath 
to  the  company,  stating  the  nature  and 
value  of  his  interest  therein.  It  was  held 
that  such  an  account  was  insufficient  that 
did  not  state  the  nature  and  value  of  the 
insured's  interest  at  the  time  of  the  loss, 
although  it  staled  that  the  entire  property 
was  destroyed,  and  although  the  value  of 
the  property  was  stated  in  the  application 
which  was  expressly  "  made  part  of  the 
policy,  reference  thereto  being  had  for  de- 
scription " ;  because  the  parties,  by  an  ex- 
press stipulation,  made  the  rendition  of 
such  an  account  an  essential  prerequisite  to 
the  right  to  recover  any  part  of  the  insur- 
ance. Wellcome  v.  People's,  &c.  Ins.  Co., 
2  Gray,  480.  See  Kingley  v.  New  Eng- 
land,  &c.  Ins.  Co.,  8  Cush.  393.  Where 
notice  of  a  loss  is  given,  but  not  according 
to  the  by-laws,  and  the  insurers,  without 
objecting  to  the  form  of  the  notice,  decline 
paying  the  loss  for  other  reasons,  they 
will  be  held  to  have  waived  the  right  to 
a  more  particular  notice.  Clark  v.  New 
England,  &c.  Ins.  Co.,  6  Cush.  342; 
Underhill  v.  Agawam,  &c.  Ins.  Co.,  lb. 
440.] 

3  Cornell  v.  Le  Roy,  9  Wend.  163. 

*  Lawrence  v  Columbian  Ins.  Co.,  JO 
Peters,  R.  507. 


858  LAW   OF  EVIDENCE.  [PART  IV. 

for  the  damage  occasioned  by  the  interruption  or  destruction  of  his 
business,  carried  on  in  the  building ;  nor  for  the  gains  which  were 
morally  certain  to  come  to  him  if  the  building  had  not  been  de- 
stroyed ;  but  only  sufficient  for  the  restoration  of  that  which  was  in- 
tiured,  namely,  the  building.^  The  law  of  marine  insurance  re- 
specting salvage  does  not  apply  to  policies  of  insurance  against  fire. 
They  assume  the  risk  of  the  property  to  a  fixed  and  agreed  amount. 
If  the  loss  is  partial,  the  party  is  entitled  to  recover  to  the  amount 
of  that  loss,  if  less  than  tlie  sum  insured  ;  and  if  there  is  a  total 
destruction  of  the  property,  then  to  the  amount  of  the  policy,  the 
value  stated  being  in  that  case  in  the  nature  of  liquidated  dam- 
ages.^ 

§  408.  Where  the  defence  is  that  the  property  was  wilfully 
burnt  by  the  plaintiff  himself,  the  crime  must  be  as  fully  and  satis- 
factorily proved  to  the  jury  as  would  warrant  them  in  finding  him 
guilty  on  an  indictment  for  the  same  offence.'^  If  the  defence  is, 
that  the  risk  has  been  materially  increased^  contrary  to  a  coridition 
in  the  policy,  so  as  to  render  the  policy  void,  the  question,  whether, 
upon  the  facts  proved,  the  risk  has  been  so  increased,  is  for  the 
jury  to  determine.*  But  it  is  not  necessary  in  such  case  for  the  de 
fendant  to  show  that  any  loss  has  resulted  therefrom  ;  for  it  is  the 
change  of  circumstances  and  consequent  increase  of  peril,  that  ab- 

1  Niblo  V.  N.  American  Ins.  Co.,  1  Sandf.  Worcester,  &c.  Ins.  Co.,  3  Cusli.  328  ; 
551-  Hynds  v.  Schenectady  Ins.  Co.,  16  Barb. 

2  Liscom  V.  Boston  Mutual  Ins.  Co.,  9     119.] 

Met.  20.5 ;  Harris  v.  Eagle  Fire  Co.,  ."5  *  Curry  v.  Commonwealth  Ins.  Co.,  10 
Johns.  368,  373  ;  1  Phillips  on  Ins.  375  ;  Pick.  585  ;  [Rice  v.  Tower,  1  Gray,  426. 
Vance  v.  Foster,  1  Irish  Circuit  Cas.  51,  The  permitting  an  officer  who  has"  seized 
cited  3  Steph.  N.  P.  2084.  By  a  misap-  the  goods  insured  on  execution  to  sell  the 
prehension  of  the  remarks  of  Pennefather,  same  in  the  insured's  building,  if  the  risk  is 
B.,  in  this  last  case,  it  was  erroneously  enhanced  tliereby,  would  be  an  increase 
stated  in  the  first  edition  of  this  volume,  of  the  risk  which  the  insured  had  the  means 
that  no  deduction  was  to  be  made  for  the  to  control.  Ibid.]  [*  A  policy  of  insur- 
dift'erence  of  value  between  new  and  olcl  ance  which  is  issued  upon  a  dwelling- 
materials,  or  any  regard  had  to  the  cost  of  house  in  consequence  of  an  express  oral 
the  property.  Sec,  contra,  Brinley  v.  The-  promise  by  the  applicant  that  it  shall  be 
National  Ins.  Co.,  11  Met.  195.  [An  in-  occupied  will  not  be  avoided  by  the  fiiil- 
surance  against  "  los.s  or  damage  by  fire  "  ure  to  fulfil  such  promise,  unless  fraud  is 
covers  a  loss  arising  in  part  from  explo-  proved,  even  though  the  risk  is  thereby 
sion,  and  in  part  from  combustion  of  gun-  increased.  Gray,  J.,  says,  "  An  oral  rep- 
powder  on  the  premises.  Scripture  v.  Low-  resentation  as  to  a  future  fact  honestly  made 
ell,  &c.  Ins.  Co.,  10  Cush.  356.]  can  have  no  effect;  for,  if  it  is  (i  mere  state- 

3  Thurtell  v.  Beaumont,  1  Bing.  339.  ment  of  an  expectation,  subsequent,  disap- 
But  see,  contra,  Hoffman  v.  Western  Ins.  pointment  will  not  prove  that  it  was  un- 
Co.,  1  La.  Ann.  R.  216.  [The  insured  in  true;  and  if  it  is  a  promise  that  a  certain 
a  policy  against  fire  may  be  guilty  of  such  state  of  facts  shall  exist  or  continue  during 
gross  misconduct,  not  amounting  to  a  the  term  of  the  policy,  it  ought  to  be  era- 
fraudulent  intent  to  burn  the  building,  as  bodied  in  the  written  contract."  Kimball 
to   preclude    him   from  recovering   for   a  v.  Mtna.  Ins.  Co.,  9  Allen,  543.] 

lost   of  the  same   by  fire.      Chandler  v. 


PART  IV.] 


INSURANCE. 


359 


solves  the  underwriter ;  and  not  the  actual  loss.^     Such  change  of 
circumstances  alone,  without  consequent  increase  of  risk,  is  not 


1  Merriam  v.   Middlesex   Ins.  Co.,   21 
Pick.  162.     In  this  case  it  was  provided, 
in  the  act  incorporating  the  company,  that 
if  any  alteration  sliould  be  made  in  any 
house  or  building,  by  the  proprietor  there- 
of, after  insurance  has  been  made  thereon 
with   said   company,  whereby  it  may  be 
exposed   to   greater  risk  or  hazard  from 
fire,  the  insurance  shall  be  void,  unless  an 
additional  premium  should  be  settled  with 
and   ])aid  to  the  directors,  &c.     And  the 
court  held,  that,  as  this  constituted  part  of 
the  contract  between  the  parties,  an  alter- 
ation, such  as  there  described,  was  fatal 
to  the  policy.     So  where  a  similar  provis- 
ion was  contained  in  the  policy  itself,  the 
like  judgment  was   given.     Houghton  v. 
Manufacturers'  Mutual   Fire   Ins.  Co.,  8 
Met.  114,  121.     The  language  of  the  court 
on  this  point  was  as  follows  :  —  "  There  is 
anotlicr  clause  in  the  policy  to  which  the 
attention  of  the  court  was  drawn  at  the 
argument,   which  is  this  :  '  If  the   situa- 
tion  or  circumstances   affecting   tiie  risk 
upon  the  property  insured  shall  be  altered 
or  changed,  i)y  or  with  the  advice,  agency, 
or  consent  of  the  assured  or  their  agent,  so 
as  to  increase  the  risk  tiiereupon,  witliout 
the   consent  of  the  company,  the  policy 
shall   be   void.'     The  court  are  of  opin- 
ion that  this  was  a  stipulation  and  condi- 
tion,  without   a    substantive    compliance 
with  which  the  company,  from    tiie  time 
of  its  happening,  would  cease  to  be  bound 
by  the  contract.     This  provision  binds  the 
assured,  not  only  not  to  make  any  altera- 
tion or  change  in  the  structure  or  use  of  the 
property,  which  will  increase  the  risk,  but 
prohibits  them  from  introducing  any  prac- 
tice, custom,  or  mode  of  conducting  their 
business,  which  would  materially  increase 
the  risk,  and  also  from  the  discontinuance 
of  any  precaution  represented  in  the  ap- 
plication to  be  adopted  and  practised  with 
a  view  to  diminish  the  risk.     The  clause 
in  question,  as  well  as  the  preceding  clause, 
refers  to  the  application  and  the  represen- 
tations contained  in  it.     Taking  this  clause 
with    the    representations,   we    think   the 
legal  eflect  is,  that,  so  far  as  these  represen- 
tations set  forth  certain  usages  and  prac- 
tices  observed   at  the  factory,  as  to  the 
moie  of  conducting  their  business,  and  as 
to    precautions    taken    to    guard    against 
fire,  it  is  not  only  an  affirmation  that  the 
facts  are  true  at  the  time,  but  in  efiect  a 
stipulation,  that,  as  far  as  the  assured,  and 
all  those  intrusted  by  them  with  the  care 
and  management  of  the  property,  are  con- 
cerned, such  modes  of  conducting  the  busi- 
^less   shall  be  substantially  ob.served,  and 


such  precautions  substantially  continue  to 
be  taken,  during  the  continuance  of  the 
policy. 

"  Jiy  a  substantial  compliance,  we  mean 
the  adoption  of  precautions,  if  not  exactly 
those  stated  in  the  application,  precautions 
intended  to  accomplish  the  same  purpose, 
and  which  may  be  reasonably  considered 
equally  or  more  efficacious.     For  instance  : 
when   it   is   stated    that  ashes    are    taken 
up  in  iron  hods,  it  would  be  a  substantial 
compliance,  if  brass  or  copper  were  sub- 
stituted.    So,  when  it  is  represented  that 
casks  of  water,  with  buckets,  are  kept  in 
each  story,  if  a  reservoir  were  placed  above, 
with  pipes  to  convey  water  to  each  story, 
and  found  by  skilful  and  experienced  per- 
sons to  be  equally  efficacious,  it  would  be 
a  substantial  compliance."     If  there  be  no 
such  stipulation  in  tiie  contract,  but  the 
risk  is  materially  increased  by  the  fraud 
or  misconduct  of  the  assured,  whereby  the 
loss  happens,  it  is  conceived  that  he  can- 
not recover.     Stebbins  v.  The  Globe  Ins. 
Co.,  2  Hall,  N.   Y.   Hep.    632.     And  see 
Loundsbury  v.  The  Protection  Ins.  Co., 
8  Conn.  459;  5  Western  Law  Journ.  303. 
[A  lire  policy  issued  by  a  stock  company 
stipulated    tliat   the   use   of  the   buildings 
insured,  during    the    continuance    of  the 
policy,  for  any  trade  or   business  denomi- 
nated  hazardous   or   extra   hazardous,  or 
specijhid  on  a  memorandum  of  special  rates, 
in    the  terms  and  conditions  annexed  to 
this  policy,  should  avoid  the  policy,  and 
that   the   conditions    annexed    should   be 
resorted  to  in  order  to  exphdn  the  rights 
and  obligations  of  the  parties.     One  con- 
dition was  tluit  if  the  risk  should  be  in- 
creased, or  the  premises  be  so  occu/n&l  by  the 
assured  as  to  render  the  risk  more  hazardous, 
the  policy  should  be  void.     During   the 
contiimance  of  the  policy,  a  part  of  the 
premises  was  used  for  a  trade  or  a  busi- 
ness specified  in  the  memorandum  of  special 
rates,   and   not  mentioned   in   the  policy, 
and    it    was    held   that  this   avoided  tho 
policy,  although  the   risks   of  the  policy 
were  special  hazards ;  and  that  parol  evi- 
dence  was   not   admissible  to  show   that 
such  use  did  not  increase  the  risk,  and  that 
such  use  was  in  fact  known  to  the  agent 
of  the  company,  who  examined  the  prem- 
ises, and   agreed   with  the  assured   upon 
what  facts  were  material  to  be  stated,  and 
filled  up  the  application,  received  the  pre- 
mium,   and   issued    the    policy.      Lee   v. 
Howard  Fire  Ins.  Co.,  3  Gray,  .581 ;  West- 
fall  V.  Hudson  River,  &c.  Ins.  Co..  2  Ker- 
nan,  89  ;  and  such  policy  cannot  be  held 
valid  for  a  portion  of  the'  risk,  and  invalid 


860 


LAW   OF  EVIDENCE. 


[PA/tr  iV. 


sufficient  to  avoid  the  policy  ;  and  therefore  the  erection  of  a 
wooden  building,  in  actual  contact  with  the  building  insured,  will 
not  have  this  efifect,  unless  the  risk  is  thereby  increased.^  The 
change  of  use,  too,  must  be  habitual,  or  of  a  permanent  character. 
Thus,  where  the  policy  was  on  premises  "  where  no  fire  is  kept, 
and  where  no  hazardous  goods  are  deposited,"  a  loss  occasioned  by 
making  a  fire  once  on  the  premises,  and  heating  tar,  for  the  purpose 
of  making  repairs,  was  held  covered  by  the  policy .^  And  where  a 
kiln  used  for  drying  corn  was  upon  one  occasion  used  for  the 
more  dangerous  process  of  drying  bark,  whereby  the  building  took 
fire  and  was  consumed,  the  underwriters,  on  the  same  principle, 
were  held  liable.^ 

§  409.  In  the  third  place,  as  to  Insurance  upon  Lives.  The 
same  principles,  course  of  proceeding,  defences,  and  rules  of  evi- 
dence are  applicable  here  as  in  policies  on  other  subjects  which 
have  been  already  considered.^  But  in  regard  to  the  interest  of 
the  plaintiff  in  the  life  in  question,  it  is  not  necessary  that  it  be 
such  as  to  constitute  the  basis  of  any  direct  claim  in  favor  of  the 
plaintiff  upon  the  party  whose  life  is  insured  ;  it  is  sufficient  if  an 


for  the  residue.  Ibid.  See  also  Brown  u. 
People's  Mut.  lus.  Co.,  11  Cush.  280; 
Friesmuth  v.  Agawam,  &c.  Ins.  Co.,  10 
Cush.  587.] 

^  Stetson  V.  Massachusetts  Ins.  Co.,  4 
Mass.  330.  [Where,  in  a  policy  of  insur- 
ance on  a  paper-mill  and  fixtures,  the  words 
"  on  condition  that  the  applicants  take 
all  risk  from  cotton  waste,"  inserted  be- 
tween the  statement  of  the  sum  insured 
and  of  the  place  where  the  property  is 
situated,  constitute  a  proviso,  the  burden 
of  proof  is  on  the  insurers  to  show  that , 
the  loss  was  occasioned  by  cotton  waste. 
Kingsley  v.  New  England,  &c.  Ins.  Co., 
8  Cush.  393.  See  also  Jones  Manuf  Co. 
V.  Manufacturers'  Mut.  Ins.  Co.,  lb.  82.] 

2  Dobson  V.  Sotheby,  1  M.  &  Malk.  90. 
[*  Where  the  policy  of  insurance  upon  a 
trip-hammer  shop,  with  the  machinery 
therein,  contained  a  provision  that  the 
policy  shall  be  void  if  the  building  re- 
mains unoccupied  over  thirty  days  without 
notice,  it  was  held  not  erroneous  to  in- 
struct the  jury  tluit,  "it  is  not  sufhcient  to 
constitute  occupancy,  that  the  tools  re- 
mained in  the  shop,  and  that  the  plaintiff's 
son  went  through  the  shop  almost  every 
day  to  look  around  and  see  if  things  were 
right,  but  some  practical  use  must  have 
been  made  of  the  building."  Keith  v. 
Quincy  Mutual  Fire  Ins.  Co.,  10  Allen. 
228.1 


3  Shaw  V.  Robberds,  6  Ad.  &  El.  75, 
[S.  C.  1  Nev.  &  P.  279 ;  Barrel  v.  Jermy, 
Excheq.  Rep.  545.  And  where  the  build- 
ing was  represented  as  occupied  for  stor- 
ing lumber  and  having  a  counting-room 
in  it,  and  the  counting-room  for  a  single 
night  was  used  as  a  resting-place  for 
strangers,  it  was  held  that  it  did  not  avoid 
the  policy.  Loiid  v.  Citizens',  &c.  Ins. 
Co.,  2  Gray,  221,  224.  In  this  case  the 
counting-room  was  warmed  by  a  stove, 
whicii  at  that  season  (September)  was  not 
in  a  safe  condition  to  use,  a  portion  of  the 
funnel  in  the  loft  being  removed.  The 
crew  of  a  vessel  that  had  filled  with  water 
were  permitted  to  lodge  in  the  counting- 
room,  but  were  expressly  forbidden  to 
make  any  fire  in  tlie  stove.  They  did 
make  a  fire  therein,  the  building  was 
burned  thereby,  and  the  insurers  were 
held  liable.  The  drawing  of  a  Icttery 
(that  being  an  unlawful  act)  with  the  con- 
sent and  participation  of  the  insured,  in  a 
building  insured  against  loss  by  fire  as  a 
shoe  manufactory,  does  not  avoid  the  pol- 
icy on  the  building,  nor  on  the  stock 
therein.  Boardman  v.  Merrimack,  &c. 
Ins.  Co.,  8  Cush.  583.] 

*  See  Kent,  Comm.  365-370;  Ellis  on 
Ins.  pp.  161  -171  ;  2  Phillips  on  Ins.  j)p. 
100-103,  143-145,  199;  Mar.-hall  on 
Ins.  pp.  770-784  (3d  edit.)  ;  3  Sleph.  N. 
P.  2068-2076 


PART  IV.] 


INSURANCE. 


361 


indirect  advantage  may  result  to  the  plaintiff  from  his  hfe  ;  and 
therefore  the  reciprocal  interests  of  husband  and  wife,  parent  and 
child,  and  brother  and  sister,  in  the  lives  of  each  other,  are  suffi- 
cient to  support  this  contract.^ 


ilbid. ;  Ellis  on  Ins.  pp.  122-128; 
Lord  V.  Dall,  12  Mass.  115.  [The  con- 
tract of  life  insurance  is  a  contract  to  pay 
a  certain  sura  of  money  on  the  death  of  a 
person,  in  consideration  of  the  due  pay- 
ment of  a  certain  annuity  during  his  life, 
and  it  is  not  a  contract  of  indemnity.  Dal- 
by  V.  India,  &c.  Ins.  Co.,  28  Eng.  Law 
and  Eq.  312;  Trenton,  &c.  Ins.  Co.  v. 
Johnson,  4  Zabr.  576.  See  Bevin  v.  Con- 
necticut, &c.  Ins.  Co.,  23  Conn.  244.  A 
creditor  of  a  firm  has  an  insurable  interest 
in  the  life  of  one  of  the  partners  thereof, 
although  the  other  partner  may  be  entirely 
able  to  pay  the  debt,  and  the  estate  of  tlie 
insured  is  perfectly  solvent,  and  he  may 
recover  the  whole  amount  insured.  Mor- 
rell  V.  Trenton,  &c.  Ins.  Co.,  lOCush.  282. 
Statements  in  an  application  for  life  insur- 
ance "  upon  the  faith  of  which  "  the  policy 
is  expressed  to  be  made,  with  a  stipulation 
that  if  they  shall  be  found  in  any  respect 
untrue,  the  policy  shall  be  void,  are  war- 
ranties, and  if  untrue,  even  in  a  matter  im- 
material to  the  risk,  they  avoid  the  policy. 
Miles  V.  Conn.  Mut.  Life  Ins.  Co.,  3  Gray, 
580.  If,  in  the  representation  on  which  a 
life  insurance  is  effected,  a  material  fact  is 
untruly  stated  or  concealed,  if  a  general 
question  was  put  which  would  elicit  that 
fact,  the  policy  will  be  void,  though  no 
specific  questions  are  asked  respecting  such 
fact,  and  though  such  statement  or  con- 
cealment arises  from  accident  or  negligence, 
and  not  from  design.  Vose  v.  Eagle  Life, 
&c.  Ins.  Co.,  6  Cush.  42.  And  the  knowl- 
edge of  the  condition  of  the  insured,  on  the 
part  of  the  agent  of  the  insurers,  is  imma- 


terial as  to  the  question  of  misrepresenta- 
tion or  concealment.  Ibid.  A  person 
whose  life  was  insured  within  the  United 
States  had  "  permission  to  make  one  voy- 
age out  and  home  to  California,  in  a  first- 
rate  vessel,  round  Cape  Horn  or  by  Vera 
Cruz."  He  was  taken  sick  in  California, 
and  returned  home  by  way  of  Panama 
and  Chagres.  It  was  held  that  the  policy 
was  thereby  avoided,  although  there  was 
then  no  usually  travelled  route  by  Vera 
Cruz,  and  although  he  returned  by  tho 
shortest  and  safest  way.  Hathaway  v. 
Trenton,  &c.  Ins.  Co.,  11  Cush.  448.  In 
a  policy  of  life  insurance  it  was  provided 
that  the  policy  should  be  void,  if  the  in- 
sured "  should  die  by  his  own  hand,"  and 
it  was  held  that  the  self-destruction  of  the 
insured  while  insane  was  not  within  the 
proviso  (three  judges  dissenting).  Breast- 
ed V.  Farmers',  &c.  Ins.  Co.,  4  Selden, 
299.  [*  Contra,  Dean  v.  Am.  Mut.  L. 
Ins.  Co.,  4  Allen,  96.]  The  proviso, 
"  shall  die  by  his  own  hand,"  includes  sui- 
cide by  swallowing  arsenic.  Hartman  v. 
Keystone  Ins.  Co.,  21  Penn.  State  R.  466. 
See  also  Moore  v.  Woolsey,  28  Eng.  Law 
and  Eq.  248.  The  right  to  the  prompt 
payment  of  the  premiums  on  a  policy 
for  life  insurance  on  the  day  they  are  due 
may  be  waived  by  the  conduct  and  course 
of  dealing  of  the  insurers  with  the  insured, 
so  that  the  policy  may  not  become  void  if 
the  premium  is  not  paid  the  day  it  is  due. 
Buckbee  v.  United  States,  &c.  Co.,  18 
Barb.  541  ;  Win^  v.  Harvey,  27  Eng. 
Law  and  Eq.  140.1 


362  LAW   OF  EVIDENCE.  [PART  IV. 


LIBEL    AND    SLANDER. 

[•§  410.  Proof  required  by  plea  of  general  issue. 

411.  Duty  of  court  to  define  what  is  a  libel,  in  point  of  law,  and  of  jury  to  find 

whether  publication  falls  within  that  definition,  and  whether  it  is  calculated 

to  injure  plaintitFs  reputation. 
412    General  allegation  of  plaintiff's  office,  proved  by  general  evidence  that  he  was 

in  the  exercise  of  the  office. 

413.  Prefatory  allegations  oi  other  extrinsic  facts,  how  far  necessary  to  be  proved. 

414.  Publication  of  the  woi'ds  by  defendant  how  proved.     Sufficient  to  prove  the 

substance  of  the  words,  and  the  sense  and  manner  of  speaking  them. 

415.  Publication  of  libel  how  proved. 

416.  Publication  by  defendant  may  be  inferred  from  fact  that  libel  is  in  his  hand- 

writing, but  not  conclusively.     Other  evidences  of  publication. 

417.  Application  of  words  to  plaintifi",  and  to  material  extrinsic  matters,  must  be 

proved  by  plaintiff. 

418.  Malicious  intent  in  publishing  words  actionable  in  themselves  an  inference 

of  law.    Actual  malice  must  be  proved,  when  not  inferred. 

419.  Plaintiff  not  permitted  to  prove  falsity  of  slanderous  words,  unless  defendant 

justifies  under  the  circumstances  of  the  speaking.    Phiintiff's  innocence  pre- 
sumed. 

420.  Special  damages  must  be  specially  alleged  and  proved.     No  recovery  except 

for  natural  and  proximate  consequences  of  wrongful  act. 

421.  Any  matter  tending  to  denj'  or  disprove  any  material  allegation  of  the  plain- 
tiff may  be  given  in  evidence  under  the  general  issue. 

422.  Plaintiff  may  rebut  prima  facie  defence  by  showing  actual  malice. 

423.  Defendant  entitled   to  have  the  whole  of  a  libel  read.     May  prove  a  letter 

written  to  him  containing  facts  on  which  he  made  his  charges   to  show  bona 
Jides. 

424.  Truth  of  words  not  provable  under  general  issue.     Defendant  may  impeach 

plaintiff's  character  by  general  evidence  to  reduce  damages. 

425.  Truth  of  charge  can  only  be  shown  under  special  plea.     General  evidence  in 

mitigation  of  damages  admissible  under  genei'al  issue. 

426.  Special  plea  in  justification  where  crime  is  charged  must  be  supported  by 

testimony  sufficient  to  convict  plaintiff  on  an  indictment. 

427.  Proof  necessary  to  justify  a  charge  of  divulghig  confidential  communica.uons 

by  a  lawyer. 

428.  Where  the  matter  is  actionable  only  in  respect  of  special  damage,  plaintiff 

must  show  express  malice. 

429.  Practice  at  the  trial.] 

§  410.   As  tlie  general  principles  and  rules  of  proceeding  are 
the  same,  whether  the  plaintiff  has  been  slandered  by  words  or  li- 


PART  IV.] 


LIBEL   Al^D   SLANDER. 


363 


belled  by  writings,  signs,  pictures,  or  other  symbols,  both  these 
modes  of  injury  will  be  treated  together.^  In  either  case,  the  plea 
of  the  general  issue  will  require  the  plaintiff  to  prove,  (1.)  the 
special  character  and  extrinsic  facts,  when  they  are  essential  to  the 
action  ;  (2.)  the  speaking  of  the  words,  or  publication  of  the  libel ; 
(3.)  the  truth  of  the  colloquium;  (4.)  the  defendant's  malicious 
intention,  where  malice  in  fact  is  material ;  (5.)  the  damage, 
where  special  damages  are  alleged,  or  more  than  nominal  damages 
are  expected. 

§  411.  It  was  formerly  held,  that  the  question,  whether  the 
publication  proved  was  or  was  not  a  libel,  or  slanderous,  was  a 
question  of  law ;  and  the  general  dislike  of  this  doctrine  has  occa- 
sioned the  enactment  of  statutes  ^  for  the  purpose  of  referring  this 
question,  at  least  in  criminal  cases,  to  the  jury.  But  such  stat- 
utes are  now  understood  to  be  merely  declaratory  of  the  true  doc- 
trine of  the  common  law ;   and,  accordingly,  it  is  now  held,  that 


1  The  general  form  of  a  declaration  for 
a  libel,  where  no  special  inducement  is  req- 
uisite, is  as  follows  :  — 

—  "  In  a  plen  of  trespass  on  the  case ;  for 
that  the  said  {defendant)  wickedly  intend- 
ing to  injure  the  plaintiff,   heretofore,  to 

wit,  on ,  did  maliciously  compose  and 

publisli,  of  and  concerning  the  plaintiff,  a 
certain  false,  scandalous,  and  defamatory 
libel,  containing,  among  other  things,  the 
false,  scandalous,  and  defamatory  matters 
following,  of  and  concerning  the  plaintiff, 
that  is  to  say,  [here  state  the  libellous  mat- 
ter, in  hcec  verba,  with  proper  innuendoes. \ 
By  means  of  the  committing  of  which 
grievances  by  the  said  {defendant)  the 
plaintiff  has  been  brought  into  public  scan- 
dal and  disgrace,  and  greatly  injured  in 
his  good  name  and  otherwise  injured." 
[If  special  damage  has  been  sustained,  by 
words  not  actionable  in  themselves,  it 
should  be  here  particularly  alleged.] 

The  usual  introductory  averment  of  the 
plaintiff's  good  name  and  reputation,  &c., 
is  altogether  superfluous,  his  good  charac- 
ter being  presumed. 

For  verbal  slander,  charging  an  indict- 
able offence,  and  not  requiring  a  special 
inducement,  the  declaration  is  as  fol- 
lows :  — 

—  "for  that  the  said  {defendant)  wickedly 
intending  to  injure  the  plaintiff,  heretofore, 

to  wit,  on ,  in  a  certain  discourse  which 

he  !hen  had  of  and  concerning  the  plain- 
tiff, did,  in  the  presence  and  hearing  of 
divers  persons,  maliciously  and  falsely 
speak  and  publish  of  and  concerning  the 
plaintiff,   the   following  false,  scandalous, 


and  defamatory  words,  that  is  to  say, 
[here  state  the  words,  mtli  proper  innu- 
endoes.]    By  means,"  &c.,  as  before. 

The  following  is  an  example  of  a  coun' 
for  words  not  in  themselves  actionable, 
with  a  special  inducement :  — 
—  "  for  that  heretofore,  and  before  the 
speaking  of  the  words  hereinafter  men- 
tioned, to  wit,  at  the court  begun  and 

holden  at ,  in   and  for  the  county  of 

,  on ,  a  certain  action  was  pending 

between  the  plaintiff  and  the  said  {defend- 
ant) upon  tiie  trial  whereof  in  said  court, 
and  in  the  due  course  of  legal  proceed- 
ings therein,  the  plaintiff,  being  duly  sworn 
before  the  said  court,  made  affidavit  and 
testified  touching  the  loss  of  a  certain  prom- 
issory note  in  controversy  in  said  action, 
and  material  to  the  issue  joined  therein  ; 
and  the  said  {defendant,)  wickedly  intend- 
ing to  injure  the  plaintiff,  did  aftenvards, 

on ,  in  a  certain  discourse  which   he 

then  had  of  and  concerning  the  plaintiff, 
in  the  presence  and  hearing  of  divers  per- 
sons, maliciously  and  falsely  speak  and 
publish  of  and  concerning  the  plaintiff,  and 
of  and  concerning  his  afiBdavit  aforesaid, 
the  following  fiilse,  scandalous,  and  de- 
famatory words,  that  is  to  say,  *  Ho '  (mean- 
ing the  plaintiff)  '  has  forsworn  himself,' 
thereby  meaning  that  the  plaintiff  (in  his 
affidavit)  had  committed  the  crime  of  per- 
jury.    By  means,"  &c.,  as  before. 

2  32  Geo.  3,  c.  60;  Constitution  of 
Maine,  Art.  1,  §  4 ;  Const,  of  New  York, 
Art.  7,  §  9  ;  Rev.  Stat.  New  York,  Part  1, 
eh.  4,  §  21. 


3b4  LAW   OF  EVroENCE.  [part  IV. 

the  judge  is  not  bound  to  state  to  the  jury,  as  a  matter  of  law, 
whether  the  publication  is  a  libel  or  not ;  but  that  the  proper  course 
is  for  him  to  define  what  is  a  libel,  in  point  of  law,  and  to  leave  it 
to  the  jury  to  say,  whether  the  publication  falls  within  that  defini- 
tion, and,  as  incidental  to  that,  whether  it  is  calculated  to  injure 
the  reputation  of  the  plaintiff.^ 

§  412.  (1.)  Where  the  plaintiff's  office  or  special  character  is  al 
leged  in  general  terms,  it  is  sufficient  to  prove,  by  general  evidence, 
that  he  was  in  the  actual  possession  and  enjoyment  of  he  office, 
or  in  the  actual  exercise  of  the  calling,  profession,  or  employment 
in  question,  without  strict  proof  of  any  legal  inception,  investment, 
or  appointment.^  Thus,  the  general  allegation  that  the  plaintiff 
was  a  magistrate,  or  peace-officer,  or  an  attorney  of  a  particular 
court,  may  be  proved  by  general  evidence  that  he  acted  in  such 
character.^  So,  it  seems,  if  he  alleges  himself  a  pht/sician  ;  *  though 
formerly  some  doubts  have  been  entertained  on  this  point  ;  princi- 
pally on  the  ground  that  the  statute  prohibited  the  practice  of  that 
profession,  without  certain  previous  qualifications.  But  this  objec- 
tion proceeds  on  the  presumption,  that  the  law  has  not  been  com- 
plied with  ;  which  is  contrary  to  the  rule  of  presumption  as  now 
well  settled.^    If,  however,  the  ^\'Ami\&  specially  alleges  the  mode 

1  Parmiter  v.  Coupland,  6  M.  &  W.  105,  of  husband  and  wife  is  not  an  exception  to 

108;  Baylis  v.  Lawrence,  11    Ad.    &  El.  this  rule.     If  there  is  a  slander  upon  both, 

920.     And  see  Tuson  v.  Evans,  12  Ad.  &  the  husband  should  sue  alone  for  the  in- 

El.  733,  where  the  same  doctrine  is  sub-  jury  to  him,  and  they  should  join  for  the 

stantially  confirmed.     See  ace.  Dalloway  injury  to  her.     The  exceptions  to  the  rule 

V.    Turrill,  26    Wend.  383  ;   2    Stark,   on  are  words  spoken  of  partners  in  the  way 

Slander,  p.  306,  n.  (1),  by  Wendell.    ["Yet  of  their  trade,  and  the  case  of  slander  of 

it  is  clear,  that  upon  a  demurrer,  or  an  an-  the  title  of  joint  owners  of  land.     Dyer, 

swer  in  the  nature  of  a  demurrer,  the  court  19  a;  Burges  y.  Ashton,  Yelv.  128;  Shep- 

mnst  determine  whether  a  cause  of  action  pard's  Action  on  the  Case  for  Slander,  52 ; 

is  set  out  in  the  declaration  to  be  sent  to  1   Walford  on    Parties,  514-516;    Eber- 

the  jury.     And  if  the  judge  presiding  at  soil  v.  King,  3  Binn.  555  ;  Hart  v.  Crow, 

the   trial,  and  the  jury,  should  think  the  7  Blackf.  351."     By  Metcalf,  J.,  in  Gazyn- 

publication  libellous,  still,  if  on  the  record  ski  v.  Colburn,  1  Gray,  10.] 

it  appear  to  be  not  so,  judgment  must  be  ^  2  Stark,  on  Slander,  p.  5,  by  Wendell, 

arrested.     The  true  distinction  probably  is,  And  see  Picton  ;•.  Jackson,  4  C."  &  P.  257. 

that,  though  the  court  will,  upon  proper  ^  Berryman  v.  Wise,  4  T.  K.  366  ;  Ante, 

motion  or  pica  of    the  defendant,  judge  Vol.   1,  '§§  83,  92;  Jones  v.  Stevens,  11 

whetlier  the  publication,  as  set  out,  consti-  Price,  235  ;  Pearce  v.  Whale,   5   B.  &  C. 

tutes  a  ground  of  action  or  not ;  yet,  if  38.     Where  the  words   were   charged   as 

such  demurrer  or  motion  is  overruled,  and  spoken   of   the   plaintiff   in   his   office  of 

the  can. «c  goes  to  the  jury,  the  judge  is  to  treasurer  and  collector,  evidence  that  he 

define  what  is  a  libel,  and  leave  to  the  jury  was  treasurer  only  was  held  insufficient, 

to  determine  whether  the  publication  falls  Sellers  v.  Till,  4  B.  &  C.  655. 

within  the  definition  of  the  offence."     By  *  McPherson  v.  Chedeall,  24  Wend.  24; 

Thomas,  J.,  Shattuck   v.  Allen,  4  Gray,  Finch  v.  Gridiey,  25  Wend.  469 ;  1  Stark. 

646 ;  Goodrich  v.  Davis,  1 1  Met.  473.  on  Slander,  p.  361  [405] ;  Brown  v.  Minns, 

"  When   words   are   spoken   of  two  or  2  Rep  Const.  Ct.  235. 

more  persons,  they  cannot  join  in  an  ac-  ^  Smith  v.  Taylor,  1  New  Rep.  196,  [4 

tion  for  the  words,  because  the  wrong  done  B.  &  P.  196] ;  2   Stark,  on  Slander,  p.  9 

to  one  is  ao  wrong  to  the  other.     The  caae  [6]. 


PART  IV.]  LIBEL   AND   SLANDER.  865 

of  his  appointment,  or  otherwise  qualifies  the  allegation  of  his  spe- 
cial character,  as,  by  stating  that  he  is  "  a  physician,  and  has  reg- 
ularly taken  his  degree  of  doctor  of  physic,"  the  special  matter 
must  be  strictly  proved  by  the  best  evidence  of  the  fact.^  But  if 
the  special  matter  does  not  amount  to  a  qualification  of  that  which 
might  have  been  more  generally  alleged,  but  is  merely  cumulative 
and  independent,  it  is  conceived  that  general  evidence  would  still 
be  sufficient.^  And  where  the  slander  or  libel  assumes  that  the 
plaintiff  possesses  the  character  alleged,  as,  if  he  was  slanderously 
spoken  of  in  that  character,  by  his  title  of  attorney,^  clergyman,* 
or  other  functionary,^  proof  of  the  words  is  sufficient  evidence  that 
'le  held  the  office. 

§  413.  In  regard  to  the  prefatory  allegations  of  other  extrinsic 
facts ^  these,  where  they  are  material,  must  be  strictly  proved  as 
alleged  ;  but  if  they  are  in  their  nature  divisible  and  independent, 
this  part  of  the  declaration  will  be  maintained  by  evidence  of 
so  much  as,  if  alleged  alone,  would  have  been  sufficient.^ 

§414.  (2.)  The  plaintiff  must  also  prove  the /ac^  o/ ^Ae  jowSZi- 
eation  of  the  words  by  the  defendant.  Words  spoken  may  be 
proved  by  any  person  who  heard  them,  though  they  are  alleged  to 
have  been  spoken  in  the  hearing  of  A.  B.  and  others.'^  And  here 
also,  if  the  words  are  in  themselves  actionable,  and  the  slanders 
are  several  and  independent,  it  is  sufficient  to  prove  as  many 
of  them  as  constitute  any  one  of  the  slanderous  accusations  ;  ^  but 
if  they  constitute  one  general  charge,  they  all  must  be  proved.^ 
And  in  all  cases,  the  words  must  be  proved  strictly  as  they  are 
alleged.^''  But  though  it  is  not  competent  for  the  witness  to  state 
the  impression  produced  on  his  mind  by  the  whole  of  the  con-* 

1  Moises  V.   Thornton,   8   T.   R.  303  ;  plaintiff's  right  of  recovery  ;  but  in  respect 

ante,  Vol.  1,  §§  53,  195,  note.  to  the  latter,  the  variance  is  fatal.     Hence, 

^  2  Stark  on  Slander,  p.  11,  note  (p)  the  day  on  which  a  libel  is  alleged  to  have 

[8].  been  published  is  not  material.     Gates  v. 

8  Berrvman  v.  TS^'ise,  4  T.  R.  366.  Bowker,  18  Verm.  R.  23. 

*  Cum'men  v.  Smith,  2  S.  &  R.  440.  ^  Bull.  N.  P.  5. 

6  Yrisarri    i;.     Clement,   3    Bing.   432.  ^  2  East,  434,  per  Lawrence,  J. ;  Flower 

See  also  Rex  v.  Sutton,  4  M.  &  S.  548,  r.  Pedley,  2  Esp.  491  ;  Oi-pwood  u.  Barkes, 

549,  per  Bavley,  J. ;   Bagnall  v.  Under-  4  Bing.  461  ;  Compagnon  v.  ilartin,  2  W. 

wood,  11  Price,  621 ;  Gould  v.  Hulme,  3  Bl.  790 ;  Easley  v.  Moss,  9  Ala.  R.  266  ; 

C.  &.  P.  625.  Iselev  v.  Lovejoy,  8  Blackf.  462. 

6  See  ante,   Vol.    1,   §§  58-63,  67  ;   2  »  Flower  v.  Pedley,  2  Esp.  491. 

Stark,  on  Slander,  p.  14  [12].    In  libel,  as  i"  [The  action  cannot  be  sustained  by 

in  other  cases,  there  is  an  important  dif-  proof  of  different  words  than  those  alleged, 

ference  between  matters  of  mere  allegation  although   they   are   of  (he   same  import, 

and  matters  of  description.     In  respect  to  Norton  v.  Gordon,  16  111.  38;  Sanford  v. 

the  former,  a  variance  in  proof  as  to  num-  Gaddis,  15  lb.  228;  Smith  v.  Hollister,  33 

ber,  quantity,  or  time,  does  not  afftxjt  the  Vt.  695.1 


366  LAW    OF   EVIDENCE.  []>ART  IV. 

versation  ;  ^  yet  it  has  been  held  sufficient  to  prove  the  substance 
of  the  words,  and  the  sense  and  manner  of  speaking  thera.^  If 
they  are  alleged  as  spoken  affirmatively,  proof  that  they  were 
spoken  interrogatively  will  not  support  the  count.^  So,  an  allega- 
tion of  words  in  the  second  person  is  not  proved  by  evidence  of 
words  in  the  third  person ;  *  nor  is  an  allegation  of  slanderous 
words,  as  founded  on  an  asserted  fact,  supported  by  proof  of  the 
words  as  founded  on  the  speaker's  belief  of  such  fact.^  Nor  will 
evidence  of  words  spoken  as  the  words  of  another  support  au 
allegation  in  the  common  form  as  of  words  spoken  by  the  de- 
fendant.^ Words  in  a  foreign  Imiguage,  whether  spoken  or  writ- 
ten, must  be  proved  to  have  been  understood  by  those  who  heard 
or  read  them ;  and  a  libel  by  pictures  or  signs  must  also  be  shown 
to  have  been  understood  by  the  spectators, ^  If  the  libel  is  con- 
tained in  a  letter,  addressed  to  the  plaintiff,  this  is  no  evidence 
of  a  publication  in  a  civil  action,  though  it  would  be  sufficient  to 
support  an  indictment  on  the  ground  of  its  tendency  to  provoke  a 
breach  of  the  peace. ^  But  if  the  letter,  though  addressed  to  the 
plaintiff,  was  forwarded  during  his  known  absence,  and  with 
intent  that  it  should  be  opened  and  read  by  his  family,  clerks,  or 
confidential  agents,  and  it  is  so,  it  is  a  sufficient  publication.^ 
If  it  was  not  opened  by  others,  even  though  it  were  not  sealed, 
it  is  no  publication.^*' 

1  Harrison  v.   Bevington,    S.   C.  &  P.  6  McPherson  r.  Daniels,  10  B.  &  C.  274  , 

708.     A  witness  cannot  be  asked,  in  the  Bell   v.   Byrne,    13   East,   554.     And  see 

first  instance,  on  his  examination  in  chief,  Walters  v.  Mace,  2  B.  &  Aid.  756 ;  Zeno- 

what   he   understood   by   the  words;  but  bio  r.  Axtell,  6  T.  R.  162. 

after  a   foundation  has  been  laid,  by  evi-  7  2  Stark,  on  Slander,  p.   14  [13];  Du 

dence  showing  something  to  prevent  their  Bost  v.  Beresford,  2  Gampb.  512.     [If  the 

being   taken   in   their  plain   and  obvious  words  charged  were  spoken  in  a  foreign 

sense,  the  witness  rnay  then  be  asked,  with  language,  they  should  be  set  forth  in  the 

reference  to  that  evidence,  in  which  sense  declaration  in  such  language,  with  an  Eng- 

he  understood  them.     Daines  v.  Hartley,  lish  translation.     If  they  are  set  forth  in 

12  Jur.  1093;  3Exch.  R.  200.  English   without   a   translation,    and    the 

^Miller  V.  Miller,  8  Johns.  74  ;  Whiting  proof  is  that  they  were  spoken  in  a  foreign 

r.  Smith,  13  Pick.  364.  tongue,  the  action  cannot  be  sustained.     If 

<*  Barnes  v._  Holloway,  8  T.  R.  150.  the  words  were  spoken  in  a  foreign  Ian- 
Proof  of  special  damage  must  be  confined  guage,  the  declaration  must  allege  that  the 
to  the  evidence  of  persons  who  received  hearers  understood  them,  and  so  must  ba 
the  slanderous  statements  from  the  defend-  the  proofs.  Zeig  v.  Ort,  3  Chand.  (Wis- 
ant  himself     Rutherford  v.  Evans,  4  C.  &  cousin)  26.] 

P.  74;  6Bing.451,S.  C;  Wardv.Weeks,  ^2   Stark,    on    Slander,    p.    .33    [35]; 

7  Bing.  211.  Hodges  v.  The  State,  5  Humph.  112. 

*  Avanllo   v.   Rogers,   Bull.  N.   P.   5 ;  »  Delcroix  v.  Thevenot,  2  Stark.  R.  63 : 

Whiting  V.  Smith,  13  Pick.  364 ;  Miller  v.  Phillips  v.  Jansen,  2  Esp.  624  ;  Ahern  v. 

Miller,  8  Johns.  74.  Maguire,  1  Armst.  &  McCartn.  39. 

6  Cook  v.  Stokes,  1  M.&  Rob.  237.    And  1°  Clutterbuck    v.    Chaifers,    2    Stark, 

see  Brooks  i;.  Blan.shajd,  1  Cr.  &  M.  779;  R.   471:    Lyle   v.    Clason,    1    Caiaes,    R, 

Hancock  v.    Winter,    7    Taunt.   205;    2  581. 
Marsh.  502.  S.  C. 


PART  IV.]  LIBEL  AND   SLANDER.  367 

§  415.  The  publication  of  a  libel  by  the  defendant  may  be 
proved  by  evidence  that  he  distributed  it  with  his  own  hand,  or 
maliciously  exposed  its  contents,  or  read  or  sang  it  in  the  presence 
of  others  ;  or,  if  it  were  a  picture,  or  a  sign,  that  he  painted  it, 
or  if  it  were  done  by  any  other  symbol  or  parade,  that  he  took 
part  in  it,  for  the  purpose  of  exposing  the  plaintiff  to  contempt 
and  ridicule.^  But  to  show  a  copy  of  a  caricature  to  an  indi- 
vidual privately,  and  upon  request,  is  not  a  publication.^  Nor 
is  the  porter  guilty  of  publishing,  who  delivers  parcels  containing 
libels,  if  he  is  ignorant  of  their  contents.^  So,  if  one  sells  a  few 
copies  of  a  periodical,  in  which,  among  other  things,  the  libel  is 
contained,  it  is  still  a  question  for  the  jury,  whether  he  knew  what 
he  was  selling.*  If  the  libel  was  published  in  a  newspaper,  evi- 
dence that  copies  of  the  paper  containing  it  were  gratuitously 
circulated  in  the  plaintiff's  neighborhood,  though  they  be  not 
shown  to  have  been  sent  by  the  defendant  who  was  the  publisher, 
is  admissible  to  show  the  extent  of  the  circulation  of  the  paper, 
and  the  consequent  injury  to  the  plaintiff.^ 

§  416.  Evidence  that  a  libel  is  in  the  defendant's  handwriting 
is  not,  of  itself,  proof  of  a  publication  by  him  ;  but  it  is  admissible 
evidence,  from  which,  if  not  explained,  publication  may  be  in- 
ferred by  the  jury ;  the  question  of  publication,  where  the  facts 
are  doubtful,  being  exclusively  within  their  province.^  The  mode 
of  proof  of  handwriting  has  been  already  considered.'^  If  the 
manuscript  is  in  the  defendant's  handwriting,  and  is  also  proved 
to  have  been  printed  and  published,  this  is  competent  evidence 
of  a  publication  by  him.^  Where  the  action  for  a  libel  is  against 
the  printer  or  bookseller^  the  fact  of  publication  may  be  proved 

1  2  Stark,  on  Slander,  pp.  16,  44  [49]  ;  a  vote  of  a  medical  society  expelling  the 
De  libellis  famosis,  5  Co.  12.5;  Lambe's  plaintiff  therefrom  for  gross  immorality, 
case,  9  Co.  .59.  And  see  Johnson  v.  Hud-  The  vote  was  published  among  the  trans- 
Bon,  7  Ad.  &  El.  233.  Lending  a  libellous  actions  of  the  society  by  the  regular  corn- 
paper,  or  sending  it  in  manuscript  to  a  mittee  of  publication,  of  which  the  de- 
printer,  is  publication,  though  it  be  re-  fendant  was  not  a  member,  and  it  was  held 
turned  to  the  party.  Rex  v.  Pearce,  that  the  proof  did  not  support  the  declara- 
Peake's  Cas.  75  ;  2  Stark,  on  Slander,  p.  tion.  Barrows  v.  Carpenter,  11  Cush. 
44  |49.]  456.] 

2  Smith  r.  Wood,  3  Campb.  323.  »  Rex    v.   Beare,    1    Ld.   Ilaym.   417; 
8  Day  V.  Bream,  2  M.  &  Rob.  54.               Lambe's  case,  9  Co.  59  ;  Baldwin  v.  El- 

*  Chubb  V.  Flannagan,  6  C.  &  P.  431.  phinston,  2  W.  Bl.  1038.     And  see  Rex 

*  Gathercole  v.  Miall,  15  M.  &  W.  319  ;  v.  AJmon,  5  Burr.  2636.  The  seven  Bish- 
10  Jur.  337.  [A  declaration  alleged  that  ops'  case,  4  St.  Tr.  304  ;  Rex  v.  Johnston, 
the  defendant  published,  or  caused  to  be  7  East,  65,  68. 

published,  in  a  certain  pamphlet,  a  libel         "  ^ac  ante,  Vol.  1,  §§  576-581. 
concerning   the    plaintiff.      The  evidence         ^  Regina  v.   Lovett,   9    C.  &  P.  462; 
•howed  that  the  defendant  aided  to  procure     Bond  v.  Douglas,  7  C.  &  P.  626. 


868  LAW   OF   EVIDENCE.  [PART  IV. 

by  evidence  that  it  was  sold  or  issued  by  him,  or  in  his  shop, 
though  it  were  only  in  the  way  of  his  trade ;  or  by  his  agent  or 
servant,  in  the  ordinary  course  of  their  employment ;  and  this, 
whether  the  master  were  in  the  same  town  at  the  time,  or  not ; 
for  the  law  presumes  him  to  be  privy  to  what  is  done  by  others 
in  the  usual  course  of  his  business,  and  the  burden  is  on  him 
to  rebut  this  presumption,  by  evidence  to  the  contrary ;  such  as, 
that  the  libel  was  sold  clandestinely,  or  contrary  to  his  orders, 
or  that  he  was  confined  in  prison,  so  that  his  servants  had  no 
access  to  him,  or  that  some  deceit  or  fraud  was  practised  upon 
him,  or  the  like.^  If  the  defendant  procure  another  to  publish 
a  libel,  tliis  is  evidence  of  a  publication  by  the  defendant,  when- 
ever  it  takes  place. ^  The  sending  of  a  letter  by  the  post  is  a 
publication  in  the  place  to  which  it  is  sent ;  ^  the  date  of  the 
letter  is  prima  facie  evidence  that  the  letter  was  written  at  the 
place  where  it  is  dated  ;*  and  the  postmark  \s  prima  facie  evidence 
that  the  letter  was  put  into  the  office  at  the  place  denoted  by  the 
mark,^  and  that  it  was  received  by  the  person  to  whom  it  was  ad- 
dressed.^ 

§  417.  (3.)  The  plaintiff  must  prove  the  truth  of  the  colloquium, 
or  the  application  of  the  words  to  himself,  and  to  the  extrinsic 
matters  alleged  in  the  declaration,  where  these  are  material  to 
his  right  to  recover.  The  meaning  of  the  defendant  is  a  ques- 
tion of  fact,  to  be  found  by   the  jury.''     It  may  be  proved  by 

1  Rex  V.  Almon,  5  Burr.  2686  ;  Rex  v.     v.  Braddyll,  3  Stark.  R.  64.     See  2  Stark. 
"Walter,  3  Esp.  21  ;  Rex  v.  Gutch,  1  M.  &     on  Slander,  p.  36  [38]. 

Malk.  433  ;  2  Stark,  on  Slander,  p.  28-  ^  Shipley  v.  Todhunter,  7  C.  &  P.  680; 

32  [30-34].      If  the  act  of  the  servant  Warren  v   Warren,  4  Tyrw.  850;  Callan 

was  beyond  the  scope  of  his  employment,  v.  Gaylord,  3  Watts,  32l" 

it  is  no  evidence  of  a  publication  by  the  "^  Oldham  v.  Pcake,  2  W.  BI.  959,  962 ; 

master.     Harding  v.   Greening,  1    Holt's  Cowp.  275,  278,  S.  C.  ;  Van  Vechten  v. 

Cas.  531  ;  1  J.  B.  Moore,  477,  S.  C. ;  Rex  Hopkins,  5  Johns.  211  ;  Roberts  v.   Cam- 

V.  Woodfall,  1    Hawk.  P.  C.  ch.  73,  §  10,  den,  9  East,  93,  96.     If  the  innuendo  does 

note  (by  Leach) ;  ante,  Vol.  1,  §  234.  not  refer  to  a  preceding  allegation,  but  in- 

2  Rex  I'.  Johnson,  7  East,  65.  troduces  new  matter,  not  essential  to  the 
^  Rex.  _  r.    Watson,    1     Campb.    215.  action,  it  needs  not  be  proved.     Ibid.     It 

VVhether  it  is  also  a  publication,  or  even  a  is  for  the  judge  to  decide  whether  the  pub- 
nisdemeanor  in  the  Y)\ace  Jrom  which  it  is  lication  is  capable  of  the  meaning  ascribed 
■ent,  quctre;  and  see  Rex  v.  Burdett,  4  B.  to  it  by  an  innuendo,  and  for  the  jury  to 
k  Aid.  95.  [And  where  two  persons  par-  decide  wliether  such  meaning  is  truly  as- 
ticipated  in  the  composition  of  a  libellous  cribed  to  it.  Blagg  v.  Stuart,  10  Ad.  & 
letter  written  by  one  of  them,  which  letter  EI.  899,  N.  S.  [But  the  innuendo  cannot 
was  afterwards  put  into  the  post-office  and  enlarge  the  matter  set  forth  in  the  other 
sent  by  mail  to  the  person  to  whom  it  was  parts  of  the  declaration.  It  is  only  ex- 
addressed,  this  was  held  competent  and  planatory  of  the  matter  already  chaVged, 
sufficient  to  prove  a  publication  by  both,  and  does  not  of  itself  extend  the  sense  of 
Miller  V.  Butler,  6  Gush.  71.]  the  words   beyond   their  natural   import. 

*  Rex  V.  Burdett,  4  B.  &  Aid.  95.  Bloss  v.  Tobey,   2   Pick.  320 ;    Carter  v. 

*  Rex  V.  Johnson.  7  East,  65  ;  Fletcher  Andrews,  16  lb.  1 ;  Snell  v.  Snow,  13  Met 


J. ART  IV.l  LIBEL    AND    SLANDER.  309 

the  testimony  of  any  persons  conversant  with  the  parties  and 
circumstances;  and,  from  the  nature  of  the  case,  they  must  be 
permitted  to  some  extent  to  state  their  opinion,  conclusion,  and 
behef,  leaving  the  grounds  of  it  to  be  inquired  into  on  a  cross- 
examination.i  If  the  words  are  ambiguous,  and  the  hearers 
understood  them  in  an  actionable  sense,  it  is  sufficient;  for  it 
is  this  which  caused  the  damage;  and  if  a  foreign  language  is 
employed,  it  must  appear  to  have  been  understood  by  the 
hearers.2  The  rule  is,  that  words  must  be  construed  in  the  sense 
which  hearers  of  common  and  reasonable  understanding  would 
ascribe  to  them;  even  though  particular  individuals,  better  in- 
formed on  the  matter  alluded  to,  might  form  a  different  judgment 
on  the  subject.3  But  where  the  words  are  spoken  in  relation 
to  extrinsic  facts,  in  respect  of  which  alone  they  are  actionable, 
as,  where  they  are  spoken  of  one  in  his  office  of  attorney,  it 
is  not  necessary  to  prove  that  the  hearers  knew  the  truth  ol 
the  extrinsic  facts  at  the  time  of  speaking;  for  they  may  after- 
wards learn  the  truth  of  the  facts,  or  may  report  them  to  others, 
who  already  know  the  truth  of  them.*  Where  the  libellous  words 
do  themselves  assume  the  existence  of  the  extrinsic  facts,  there, 
as  we  have  just  seen,  they  need  not  be  proved.^ 

§  418.    (4.)    As  to  the  proof  of  malice  or  intention.      If  the 
words  are  in  themselves  actionable,  malicious  intent  in  publishing 

278;  Goodrich   v.   Davis,    11    Met.   473.]         2  2  Stark,  on  Slander,  p.  46  [.51]  j^Pleet- 

[*"  The  effect  of  the  words  used,  and  not  wood   v.   Curley,   Hob.  268.      [*  Keen  v 

the  meaning  of  the  party  in  uttering  them,  Ruff,  1  Clarke,  Iowa,  482  ] 
is  the  test  of  their  being  actionable  or  not;         ^  Pcr  Pollock,  0.  B.,  in  Hankmson   r. 

that  is,  first  ascertain  the  meaning  of  the  Bilby,  16  M.  &  W.  44.5.     [*  In  Dames  v. 

words  themselves,  and  then  give  tliem  the  Hartley,  3  Exch.  200,  it  was  held  that  un- 

effect  any  reasonable  by-stander  would  af-  less  a  foundation  is  laid  by  showing  that 

fix  to  them."     Parke,  Baron,  in  Hankin-  something  had   previously   passed  which 

son  !'.  Bilbv,  16  Meeson  &  W.  442.]  gave  a  peculiar  character  and  meanmg  to 

1  2  Stark,  on  Slander,  p.  46  [51].     Evi-  .some  word,  the  question  cannot  be  put  to 

dence  that  the  plaintiff  had  been  made  the  a  witness,  "  What  did  you  understand  b^,- 

subject  of  laughter  at  a  public  meeting  is  iti"] 

admissible   for  this  purpose  as  well  as  in        *  Fleetwood  v.  Curley,  Hob.  268. 
proof  of  damages.     Cook  v.  Ward,  6  Bing.         &  Jones  v.  Stevens,  11  Price,  235  ;  Bag 

409.     [In  proving  the  application  of  the  nail   v.   Underwood,   Id.    621  ;    Gould   v. 

language  of  an  alleged  libel  to  the  person  Hulme,  3  C.  &  P.  625  ;  Yrisarri  v.  Clem- 

who  is  the  subject  of  it,  witnesses  may  be  ent,  3  Bing.  432.     [Barnet  v.  Allen  3   H 

asked  their  opinion  as  to  the  meaning  and  &  N.  376.     Where  the   slander  is  alleged 

intent,  and  what  is  their  understanding  of  to  have  been  made  not  in  direct  terms,  but 

particular  expressions.     Miller  v.  Butler,  by  expressions,  gestures,  and  intonations 

6  Cush.  71.     See  also  Goodrich  v.  Davis,  of  voice,  it  is  competent  for  witnesses  who 

11    Met.  473.      But  see    Snell   v.    Snow,  heard  the  expressions  to  state  what  they 

13  Met.  278;  Van  Vechten   v.   Hopkins,  understood  the  defendant  to  mean  by  them, 

5   Johns.    211;    Gibson    v.    Williams,   4  and  to  whom  he  intended  to  apply  tliera. 

Wend.  320;  White  v.  Say  ward,  33  Maine,  Leonard  v.  Allen,  11  Cush.  24 1. J 
322.] 

VOL.  II  24 


370 


LAW  OF  EVIDENCE. 


[part  IV. 


them  is  an  inference  of  law,  and  therefore  needs  no  proof  ;^ 
ihongh  evidence  of  express  malice  may  perhaps  be  shown,  in 
proof  of  damages.2  But  if  the  circumstances  of  the  speaking  and 
publishing  were  such  as  to  repel  that  inference  and  exclude  any 
liability  of  the  defendant,  unless  upon  proof  of  actual  malice,  the 
plaintiff  must  furnish  such  proof.  To  this  end,  he  may  give  in 
evidence  any  language  of  the  defendant,  whether  oral  or  written, 
showing  ill-will  to  the  plaintiff,  and  indicative  of  the  temper  and 
disposition  with  which  he  made  the  publication ;  and  this,  whether 
such  language  were  used  before  or  after  the  publication  com- 
plained of.^     But  if  such  collateral  evidence  consists  of  matter 


1  [*  Malice  in  fact,  and  imputed  malice, 
or  malice  in  law,  differ  not  in  nature,  but 
only  in  the  evidence  by  which  they  are 
established.  Per  Selden,  J.,  Lewis  v.  Chap- 
man, 16  N.  Y.  369.  See  Bush  v.  Prosser, 
11  N.  Y.  358.  Express  malice  forms  no 
part  of  the  issue  except  in  cases  of  privi- 
leged communications.  Howard  v.  Sex- 
ton, 4  N.  Y.  157.] 

2  Stark,  on  Slander,  p.  47  [53].  And 
see  Bodwell  i'.  Osgood,  3  Pick.  379,  384. 
Where  the  truth  of  the  words  had  been 
pleaded  in  justification,  and  the  plaintiff 
at  the  trial  offered  to  accept  an  apology 
and  uominal  damages,  if  the  defendant 
would  witlidraw  the  justification,  which 
the  defendant  refused,  but  did  not  attempt 
to  prove  it;  this  conduct  was  iield  proper 
for  the  jury  to  consider,  with  reference  to 
the  question  of  malice,  as  well  as  to  that 
of  damages.  Simj)Son  v.  Robinson,  18 
Law  J.  73,  Q.  B. ;  12  Ad.  &  El.  511, 
N.  S.  [A  retraction  of  the  slander,  in  the 
presence  of  the  defendant's  family,  is  not 
admissible  in  mifigation  of  damages.  Kent 
V.  Bonney,  38  Maine,  435.]  In  an  action 
for  a  libel  in  charging  the  plaintiff  with 
murder  in  a  d<iel,  with  circumstances  of 
aggravation,  these  circumstances,  if  libel- 
lous, must  be  justified,  as  well  as  the  prin- 
cipal charge.  The  record  of  the  plaintiff's 
acquittal  is  admissible  in  evidence  ;  but  it 
is  not  alone  a  sufficient  answer  to  the  de- 
fend int's  justification  ;  nor  is  it  conclusive 
against  the  defendant,  in  proof  of  the 
plaintiff's  innocence  of  all  the  circum- 
stances alleged.  Ilelsham  v.  Blackwood, 
15  Jur.  861. 

8  2  Stark,  on  Slander,  pp.  47-53  [53- 
60].  See  supra,  §271  ;  Kcan  v.  McLaugh- 
lin, 2  S.  &  K.  469  ;  Pearson  v.  Le  ALiitro, 
7  Jur.  748 ;  Stuart  i.-.  Lovell,  2  Stark.  U. 
93;  Chambers  v.  Robinson,  1  Str.  691; 
Wallis  V.  Mease,  3  Binn.  546  ;  Macleod  v. 
Wakley,  3  C  &  P.  311  ;  Plunkctt  r.  Cob- 
bett,  5  Esp.  136 ;  Chubb  v.  Westley,  6  C. 


&  P.  436.  In  some  cases  the  admissibility 
of  other  words  or  writings  has  been  limited 
to  those  which  were  not  in  themselves 
actionable ;  Mead  v.  Daubigny,  Peake's 
Cas.  125;  Bodwell  v.  Swan,  3  Pick.  376  ; 
Defries  v.  Davis,  7  C.  &  P.  112;  or  for 
which  damages  had  already  been  recovered. 
Symmons  v.  Blake,  1  M.  &  Rob.  477.  In 
other  cases,  it  has  been  restricted  to  words 
or  writings  relating  to  those  which  are 
alleged  in  the  declaration.  Finnerty  v. 
Tipper,  2  Campb.  72  ;  Delegal  v.  High'iey. 
8  C.  &  P.  444  ;  Barwell  v.  Adkins,  1  M. 
&  G.  807 ;  Ahern  v.  Maguire,  1  Armstr. 
&  Macartn.  39 ;  Bodwell  v.  Swan,  3  Pick. 
376.  [*  In  Parmer  v.  Anderson,  33  Ala. 
78,  it  is  held  that  the  repetition  of  the  slan- 
derous or  similar  words,  after  suit  brought, 
is  admissible  proof  of  malice ;  secus  of  othc 
words  amounting  to  a  distinct  slander.  In 
Howard  v.  Sexton,  4  N.  Y.,  157,  it  is  held, 
that  evidence  cannot  be  given  of  words  spo- 
ken on  another  occasion,  and  of  a  different, 
import  from  those  charged  in  the  declara- 
tion, although  such  evidence  is  offered  only 
for  the  purpose  of  showing  that  the  words 
charged  were  spoken  with  a  malicious  in- 
tent. And  it  is  said  by  Gardiner,  J.,  that 
the  modern  and  better  doctrine  is  that 
such  evidence  is  not  admissible  to  en- 
hance the  damages.  In  Taylor  v.  Church, 
8  N.  Y.  452,  evidence  of  what  was  said 
by  the  defendant  in  directing  the  print- 
ing of  the  libellous  matter  was  admit- 
ted in  order  to  disprove  actual  malice 
in  the  publication,  and  to  influence  the 
question  of  damages.]  In  others,  the  ad- 
missibility of  subsequent  words  has  been 
limited  to  cases  where  the  intention  wns 
equivocal,  or  the  words  ambiguous.  Sm- 
art V.  Lovell,  2  Stark.  R.  93 ;  Pearce  v. 
Ornsby,  1  M.  &  Rob.  455  ;  Lantcr  v.  Mc- 
Ewen,  8  Blackf  495  ;  Kendall  v.  Stone, 
2  S;mdf  Scr.  269  ;  Berson  v.  Edwards,  1 
Smith,  7.  [In-  an  action  of  slander  for 
charging  an  infant  with  larceny,  evidence 


PART  IV.]  LIBEL   AND   SLANDER.  371 

actionable  in  itself,  the  jury  must  be  cautioned  not  to  increase  the 
damages  on  that  account.^ 

§  419.  In  ordinary  cases,  under  the  general  issue,  the  plaintiff 
will  not  be  permitted  to  prove  the  falsity  of  the  charges  made  by 
the  defendant,  either  to  show  malice,  or  to  enhance  the  damages ; 
for  his  innocence  is  presumed  ;  imless  the  defendant  seeks  to  pro- 
tect himself  under  color  of  the  circumstances  and  occasion  of 
writing  or  speaking  the  words ;  in  which  case  it  seems  that  evi- 
dence that  the  charge  was  false,  and  that  the  defendant  knew 
it  to  be  so,  is  admissible  to  rebut  the  defence.^  But  where  the 
action  is  for  slander  in  giving  a  character  to  a  former  servant, 
or  one  who  has  been  in  the  employment  of  the  defendant,  the 
plaintiff  must  prove  that  the  character  was  given  both  falsely  and 
maliciously.^  Proof  that  the  defendant  was  aware  of  its  falsity  is 
sufficient  proof  of  malice ;  and  in  proof  of  its  falsity,  general  evi- 
dence of  his  good  character  is  sufficient  to  throw  the  burden  of 
proof  upon  the  defendant.* 

§  420.  (5.)  As  to  the  damages.  Where  special  damage  is  es- 
sential to  the  action,  the  plaintiff  must  prove  it,  according  to  the 
allegation.  We  have  already  seen,  that  damages,  which  are  the 
necessary  results  of  the  wrongful  act  complained  of,  need  not  be 
alleged ;  and  these  are  termed  general  damages ;  but  that  those 
which,  though  natural,  are  not  necessary  results,  and  which  are 
termed  special  damages  must  be  specially  alleged  and  proved: 
and  that  no  damages  can,  in  any  case,  be  recovered,  except  those 
which  are  the  natural  and  proximate  consequences  of  the  wrong- 

of  a  previous  quarrel  between  the  defend-  a   sufficient  attack.      Chubb  v.  Gsell,  34 

ant's  father  and  next  friend,  is  not  admis-  Penn.  St.  114.] 

sible  to   prove   malice  in   the    defendant  ^  Brommage  v.  Prosser,  4  B.  &  C.  256 ; 

towards   the  plaintiff.     York  v.  Peace,  2  Hargrave   v.   Le   Breton,  4   Burr.  2425; 

Grav,  282.]  Weatherstone  i-.  Hawkins,  1  T.  R.  110. 

1  Russell  V.  Macquister,  1  Campb.  49,  n ;  *  Rogers  v.  Clifton,  3  B.  &  P.  587,  589 ; 
Pearson  v.  Le  Maitre,  7  Jur.  748 ;  5  Man.  2  Stark,  on  Slander,  p.  52  [58] ;  King  v. 
&  Gran.  700;  6  Scott,  N.  R.  607.  And  Waring,  5  Esp.  13;  Pattison  v.  Jones,  8 
see  Finnerty  v.  Tipper,  2  Campb.  74,  75;  B.  &  C.  578.  [Chubb  v.  Gsell,  34  Pcnn. 
Tate  V.  Humphrey,  Id.  73,  n.  If  the  114;  Hartranft  v.  Hesser,  Id.  1I7.J 
plaintiff  collaterally  introduces  other  libels  [*  Where  the  libel  or  slander  is  prima  facie 
in  evidence,  the  defendant  may  rebut  them  a  privileged  communication,  statements 
by  evidence  of  their  tmth.  Stuart  v.  Lov-  made  by  tiie  defendant  subsequently  to  the 
ell,  2  Stark.  R.  93 ;  Warne  v.  Chadwell,  libel,  as  tending  to  show  malice  in  the  de- 
Id.  457  ;  [Commonwealth  v.  Harmon,  2  fendant  at  the  time  of  the  libel,  are  admis- 
Gray,  289].  sible.      Hemmings  v.   Gasson,  1  Ellis,  B. 

2  2  Stark,  on  Slander,  p.  53  [59].  [*Ev-  &  E.  346.  But  words  spoken  after  an 
idence  of  the  good  character  of  the  plain-  action  brought  cannot  be  brought  m  to 
tiff  cannot  be  introduced  until  it  has  been  the  aid  of  doubtful  or  ambiguous  worda 
attacked  by  the  defendant.  Nor  is  proof,  so  as  to  give  them  the  character  of  slander, 
under  the  general  issue,  of  circumstances  Lucas  v.  Nichols,  7  Jones,  Law  (^  ), 
awakening  suspicion  in  defendant's  mind,  32.] 


872 


LAW   OF   EVIDENCE. 


[part  IV 


ful  act  complained  of.'  Even  if  the  words  are  actionable  in  them- 
selves, and  a  fortiori  if  thej  are  not,  no  evidence  of  special  dam- 
age is  admissible,  unless  it  is  specially  alleged  in  the  declaration  ; 
and  to  such  special  allegation  the  evidence  must  be  strictly  con- 
fined.2  Thus,  if  the  loss  of  marriage  is  alleged  as  special  damage, 
the  individual  must  be  named  with  whom  the  marriage  might 
have  been  had,  and  no  evidence  can  be  received  of  a  loss  of  mar- 
riage with  any  other  person.^  But  where  the  damage  is  in  the 
prevention  of  the  sale  of  an  estate  by  auction,  a  general  allegation 
is  sufficient,  and  evidence  that  any  person  would  have  bid  upon 
it  is  proof  of  such  prevention.*  So,  where  the  damage  consists  in 
the  desertion  of  a  chapel,^  or  of  a  theatre,^  by  those  who  used  to 
resort  to  it,  it  seems  that  a  general  allegation  and  proof  of  the 
diminution  of  receipts  is  sufficient.  If  the  defendant  admits  and 
justifies  the  fact  of  publication,  without  pleading  the  general 
issue,  the  plaintiff  may  show  the  manner  of  publication,  as  affect- 
ing the  question  of  damages.'^ 


1  See  supra,  tit.  Damages,  §§  2.54,  256, 
267,  269,  271,  275.  In  a  joint  action  by 
partners,  for  a  libel  in  respect  to  their 
trade,  damages  cannot  be  given  for  any 
injury  to  their  private  feelings,  but  only 
for  injury  to  their  trade.  Haythorne  v. 
Lawson,  3  C.  &  P.  196. 

2  Ibid.;  Herrick  v.  Lapham,  10  Johns. 
281 ;  Hallock  v.  Miller,  2  Barb.  S.  C.  R. 
730.  Where  the  action  was  for  alleging 
that  the  plaintiif's  ship  was  unseaworthy, 
J)roof  of  special  damage  wa.s  held  admissi- 
ble, without  any  averment  of  special  dam- 
age in  the  declaration  ;  beoause,  being  a 
chattel,  no  action  is  maintainable  without 
proof  of  some  damas-e.  Ingram  v.  Lawson, 
9  C.  &  P.  326.  Sed  qimre.  [An  author 
cannot  maintain  an  action  for  a  publica- 
tion disparaging  his  works  in  which  he 
has  a  copyright,  without  an  allegation  and 
proof  of  special  damage.  Swan  v.  Tappan, 
5  Cush.  104. 

If  the  plaintiff  in  an  action  on  the  case 
for  publishing  disparaging  statements  con- 
cerning his  goods,  whereby  he  has  sustained 
special  damage,  proves  that  the  publication 
is  false  in  any  material  respect,  and  that 
he  has  sustained  special  damage  therefrom, 
such  proof  makes  a  prima  facie  case,  and 
malice  is  to  be  presumed.  If  the  defend- 
ant then  proves  that  the  publication  was 
honestly  made  by  him,  believing  it  to  be 
true  ;  and  that  there  was  a  reasonable  oc- 
casion therefor  in  the  conduct  of  his  own 
affairs  wliich  faiijy  warranted  the  ])ublica- 
tionj  such  proof  renders  the  publication 


privileged,  and  constitutes  a  good  defence 
to  the  action,  unless  the  plaintiff  can  show 
malice  in  fact,  which  is  a  question  for  the 
jury.     Ibid.] 

3  1  Saund.  243,  n.  5,  by  Williams  ;  Hunt 
V.  Jones,  Cro.  Jac.  499  ;  Anon.  2  Ld. 
Eaym.  1007  ;  2  Stark,  on  Slander,  p.  55 
[62,  63].  So  the  loss  of  customers  and  the 
like.  Ibid.  ;  Tilk  v.  Parsons,  2  C.  &  P. 
201  ;  Ashley  v.  Harrison,  lEsp.  48,  50. 

*  2  Stark,  on  Slander,  p.  56  [63]. 

5  Hartly  v.  Herring,  8  T.  R.  130. 

6  Ashley  v.  Harrison,  1  Esp.  48. 

7  Vines  v.  Serell,  7  C.  &  P.  163.  But 
evidence  of  the  defendant's  procuring  tes- 
timony to  prove  the  truth  of  his  charges, 
and  then  declining  to  plead  in  justification, 
is  not  admissible  to  affect  the  damages, 
though  it  might  be  properly  referred  to 
the  jury,  upon  the  question  of  malice. 
Bodwell  V.  Osgood,  3  Pick.  379.  Nor  is 
evidence  of  a  repetition  of  the  slander  ad- 
missible to  enhance  the  plaintiff's  damages. 
Burson  v.  Edwards,  1  Smith,  7  ;  Laiiter 
V.  McEwen,  8  Blackf.  495  ;  Shortlev  v. 
Miller,  1  Smith,  395.  Nor  can  the  failure 
to  sustain  a  plea  in  justification  have  that 
effect.  Shank  v.  Case,  1  Smith.  87.  [The 
plaintiff  cannot  show,  in  order  to  enhance 
the  damages,  that  it  was  currently  reported 
in  the  neighborhood  tiiat  the  "defendant 
had  charged  the  plaintiff'  with  the  crime 
alleged  in  the  declaration.  Leonard  v. 
Allen,  11  Cush.  24 1,  And  where  tlie  pub- 
lication is  by  a  private  letter  directed  and 
sent  by  mail   to  a  particular  person,  the 


PART  IV.] 


LIBEL   AND   SLANDER. 


373 


§  421.  In  the  defence  of  this  action  under  the  geyieral  issue,  the 
defendant  may  give  in  evidence  any  matter  tending  to  deny  or 
disprove  any  material  allegation  of  the  plaintiff;  such  as  the 
speaking  and  publishing  of  the  words,  the  malicious  intention  or 
the  injurious  consequences  resulting  from  the  act  complained  of. 
If  the  plaintiff,  in  proof  of  malice,  relies  upon  the  falsity  of  the 
charge,  the  defendant  may  rebut  the  inference  by  evidence  of  the 
truth  of  the  charge,  even  under  the  general  issue.  And  where  the 
occasion  and  circumstances  of  the  publication  or  speaking  were 
such  as  to  require  from  the  plaintiff  some  proof  of  actual  malice, 
the  defendant  may  prove  these  circumstances  under  the  general 
issue.^  Such  is  the  case  where  the  alleged  libel  or  slander  con- 
sisted in  communications,  made  to  the  appointing  poiver,  in  rela- 
tion to  the  conduct  of  the  plaintiff  as  a  public  officer;  or,  to  the 
individuals  or  authorities  empowered  by  law  to  redress  grievances, 
or  supposed  to  possess  influence  and  ability  to  procure  the  means 
of  relief;  or,  where  they  were  confidential  communications,  made  in 
the  ordinary  course  of  lawful  business,  from  good  motives  and  for 
justifiable  ends.^     So,  where  the  circumstances  were  such  as  to 


defendant  is  liable  for  the  damages  caused 
by  any  further  publication  of  the  letter  by 
the  person  to  whom  it  is  addressed,  or  by 
other  persons  after  it  comes  into  the  hands 
of  the  person  addressed,  if  such  further 
publication  is  a  jjrobalde  and  natural  con- 
secjucnce  of  the  first  sending  the  letter. 
Miller  r.  Bartlett,  6  Cush.  71.] 

^  The  class  of  privileged  communica- 
tions "  comprehends  all  cases  of  communi- 
cations made  bona  fide  in  performance  of  a 
duty,  or  with  a  fair  and  reasonable  purpose 
of  protecting  the  interest  of  the  party  using 
the  words."  Somervill  v.  Hawkins,  15 
Jur.  450,  per  Maule,  J.,  3  Eng.  Law  &  Eq. 
R.  503.  A  communication  being  shown 
to  be  privileged,  the  burden  of  proof  is  on 
the  plaintitf  to  show  actual  malice  in  the 
defendant.  But  to  enable  the  plaintiff  to 
have  the  question  of  malice  submitted  to 
the  jury,  it  is  not  essential  that  the  evi- 
dence should  bo  such  as  necessarily  leads 
to  the  conclusion  that  malice  existed,  or 
that  it  should  be  inconsistent  with  the  non- 
existence of  malice ;  but  it  is  necessary 
that  the  evidence  should  raise  a  probability 
of  malice,  and  be  more  consistent  with  its 
existence  than  with  its  non-existence. 
Ibid.  [See  also  Taylor  v.  Hawkins,  5 
Eng.  Law  &  Eq.  253  ;  Harris  v.  Thomp- 
son, 24  lb.  370 ;  Cook  v.  Wildes,  30  lb. 
284 ;  Gilpin  v.  Fowler,  26  lb.  386  ;  Harri- 
son V.  Bush,  32  lb.   173.     The  fact  that 


the  defendant  is  the  conductor  of  a  public 
press  gives  him  no  peculiar  rights,  or  es- 
pecial privileges,  or  claims  to  indulgence. 
He  has  Just  the  same  rights  that  the  rest 
of  the  community  have,  and  no  more.  He 
has  the  right  to  puljlish  the  truth,  but  no 
right  to  publish  falsehoods  to  the  injury 
of  otliers  with  impunity.  Slieckell  j;.  Jack- 
son, 10  Cush.  25.  But  if  he  puldish  an 
article  without  knowing  it  to  be  libellous, 
and  so  satisfy  the  jury,  he  will  not  be  lia- 
ble therefor,  although  the  writer  of  the 
article  intended  it  to  be  libellous.  In  such 
case  the  writer  only  is  liable  to  the  party 
injured.     Smith  v.  Ashley,  1 1  Met.  367.] 

-  [* "  Where  the  relation  between  tiie 
parties, by  whom  and  to  whom  the  commu- 
nication is  made  is  such  as  to  render  it 
reasonable  and  proper  that  the  informa- 
tion should  be  given,  it  will  be  regarded 
as  privileged."  Selden,  J.,  in  Lewis  et 
al.  V.  Chapman,  16  N.  Y.  374.  lu  this 
case  it  was  held  that  a  written  communi- 
cation made  by  a  banker  in  the  country  to 
a  mercantile  house  in  New  York,  in  respect 
to  the  pecuniary  responsibility  of  a  custom- 
er of  such  house,  whose  note  has  been  sent 
to  him  for  collection,  is  privileged.  In 
Taylor  v.  Church,  8  N.  Y.  452,  the  de- 
fendant was  employed  by  an  association 
of  merchants  in  New  York  to  travel  in 
Mississippi  and  obtain  information  iB 
relation  to  the  standing  of  merchants  re- 


874 


LAW   OF   EVIDENCE. 


[part  IV. 


exckidc  the  presumption  of  malice,  as,  if  the  words  were  spoken 
by  the  defendant  in  his  office  of  Judge,  Juror,  Attorney,  Advocate, 
Witness,  or  Party,  in  the  course  of  a  judicial  proceeding,  or  as  a 
member  of  a  legislative  assembly,  in  his  place,  these  also  may  be 
shown  under  the  general  issue.^     So,  if  a  person  having  informa- 


siding  there.  The  information  was  trans- 
mitted in  the  form  of  reports  to  the  asso- 
ciation, and  printed  and  distributed  among 
all  the  members  of  the  association,  irrespec- 
tive of  the  question  whether  they  had  an 
interest  in  the  standing  of  such  merchants. 
It  was  held  that  the  defendant  was  liable 
for  any  false  report  made  by  him  prejudi- 
cial to  the  credit  of  the  subject  of  it,  al- 
though made  honestly,  and  from  informa- 
tion upon  which  he  relied.  In  Van  Wyck 
V.  Aspinwall,  17  N.  Y.  190,  it  is  held 
that  a  communication  which  would  other- 
wise be  actionable  is  privileged,  if  made  in 
good  faith,  upon  a  matter  involving  an 
interest  or  duty  of  the  party  making  it, 
though  such  duty  be  not  strictly  legal,  but 
of  imperfect  oi)ligation,  to  a  person  having 
a  corresponding  interest  or  duty.  See 
Elam  V.  Bodger,  23  111.  498.  But  a  letter 
addressed  to  a  woman,  and  containing 
libellous  matter  concerning  her  suitor,  can- 
not be  justified  on  the  ground  tliat  the 
writer  was  her  friend  and  former  pastor, 
and  tiiat  the  letter  was  written  at  the  re- 
quest of  her  parent!^,  wlio  assented  to  all 
its  contents.  The  Coimt  Joannes  v.  Ben- 
nett, 5  Allen,  169.  The  privileges  of  a 
party  and  his  counsel  are  coextensive,  in 
regard  to  words  spoken  in  the  conduct  of 
a  cause ;  but  the  words  must  have  been 
spoken  by  the  party  in  the  reasonable 
and  necessary  defence  or  pursuit  of  his 
rights  in  a  suit  then  pending  or  about  to 
be  instituted,  and  by  counsel  in  the  course 
of  his  discharge  of  his  duty  to  his  client, 
and  must  have  been  pertinent  to  the  mat- 
ter in  question,  or  must  have  been  spoken 
bv  party  or  counsel  bona  Jide.  Mower  v. 
Watson,  1 1  Vt.  536  ;  Garr  v.  Selden,  4  N. 
Y.  91  ;  Mackay  v.  Ford,  5  Hurl.  &  Nor. 
792.  See  Henderson  v.  Broomhead,  4 
Hurl.  &  Nor.  569.  As  to  the  report  of 
judicial  proceedings,  it  was  held  in  Lewis 
V.  Levy,  1  Ellis,  B.  &  E.  537,  that  the  rule 
that  the  publication  of  a  fair  and  correct 
report  of  proceedings  taking  place  in  a 
public  court  of  justice  is  privileged  extends 
to  proceedings  taking  phice  publicly  before 
a  magistrate  on  the  ])reliminary  investiga- 
tion of  a  criminal  charge,  terminating  in 
the  discharge  by  the  magistrate  of  the  par- 
ty charged.  In  Cincinnati,  &c.  Co.  v. 
Timberslake,  10  Ohio,  N.  S.,  548,  it  was 
held  that  a  newspaper  has  no  right  to  pub- 
lish the  contents  of  an  ex  parte  athdavit  to 


obtain  the  plaintiff's  arrest  on  a  criminal 
process,  unless  tiie  cliarge  made  by  the  afll- 
davit  be  true.  And  Denio,  J.,  in  Sanford 
V.  Bennett,  24  N.  Y.  20  (1861),  wliich  de- 
cided that  the  pn])lication  of  a  slander  ut- 
tered by  a  murderer  at  the  time  of  his  exe- 
cution is  not  privileged  at  common  law, 
said  the  Superior  Court  of  the  city  of  New 
York,  had  in  18.50  and  1851  decided  in 
conformity  with  the  current  of  English 
authority,  that  the  publication  of  ex  parte 
proceedings  before  a  public  magistrate, 
such  as  a  complaint  against  an  individual 
for  a  criminal  offence,  was  not  privileged, 
citing  Stanley  v.  Webb,  4  Sand.  S.  C.  R. 
21  ;  Mathews  v.  Beach,  5  lb.  256.  A  com- 
plaint to  the  grand  jury  containing  a 
charge  of  perjury  is  not  a  libel,  although 
before  its  presentation  to  them  it  was  ex- 
hibited to  various  persons,  by  whom  it  was 
signed.  Kidder  v.  Parkhurst,  3  Allen, 
393.  A  communication  to  the  public  at 
large,  in  a  newspaper,  in  respect  to  the 
qualifications  of  a  candidate  for  an  office, 
tiie  appointment  to  which  is  made  by  a 
board  of  limited  number,  does  not  stand 
on  the  same  footing  of  privilege  as  if  ad- 
dressed to  the  appointing  power.  Hunt  i^. 
Bennett,  19  N.  Y.  173.] 

1  1  Stark,  on  Slander,  pp.  401  -406,  by 
Wendell ;  Fairman  v.  Ives,  5  B.  &  Aid. 
642;  Bradley  v.  Heath,  12  Pick.  163; 
Hoar  V.  Wood,  3  Met.  193  ;  Coffin  v.  Cof- 
fin, 4  Mass.  1  ;  Remington  v.  Congdon, 
2  Pick.  310.  Confidential  communications, 
made  in  the  usual  course  of  business,  or  of 
domestic  or  friendly  intercourse,  should  be 
viewed  liberally  by  juries ;  and  unless  they 
see  clearly  that  there  was  a  malicious  inten- 
tion of  defaming  the  plaintiff,  they  ought 
to  find  for  the  defendant.  Todd  u.  Haw- 
kins, 8  C.  &  P.  88,  per  Alderson,  B.  See, 
to  tlie  same  eftcet,  Wright  v.  Woodgatc,  2 
C.  M.  «Sb  R.  573;  1  Tyrw.  &  G.  12;  Too- 
good  V.  Spyring,  1  C.  M.  &  R.  181;  4 
Tyrw.  582 ;"  Shipley  v.  Todhunter,  7  C.  & 
P.  680  ;  Story  v.  Challands,  8  C.  &  P.  234, 
236  ;  Wilson  v.  Robinson,  9  Jur.  726 ; 
Griffith  V.  Lewis,  7  Ad.  &  El.  61,  N.  S. ; 
Warr  v.  Jolly,  6  C.  &  P.  497  ;  Padmore  v. 
Lawrence,  11  Ad.  &  El.  380 ;  Needham  v. 
Dowling,  15  Law  Journ.  9  N.  S. ;  Gard- 
ner V.  Slade,  13  Jur.  826;  Kershaw  v. 
Bailey,  1  P^xch.  R.  743  ;  Somervill  b.  Haw- 
kins, 15  Jur.  450;  3  Eng.  Law  and  Eq. 
R.  503;  Simpson  v.  Robinson,  12  Ad.  & 


PART  IV.]  LIBEL   AND    SLANDER.  375 

tion  materially  affecting  the  interests  of  another  honestly  commu- 
nicates it  privately  to  such  other  party,  in  the  full  and  reasonably 
grounded  belief  that  it  is  true,  he  is  justified  in  so  pu1)lishing  it, 
though  he  has  no  personal  interest  in  the  subject-matter,  and 
though  no  inquiry  has  been  made  of  him,  and  though  the  danger 
to  the  other  party  is  not  imminent.^  Under  this  plea,  also,  the 
defendant  may  prove  tliat  the  publication  was  procured  by  the 
fraudulent  contrivance  of  the  plaintiff  himself,  with  a  view  to  an 
action  ;  or  that  the  cause  of  action  has  been  discharged  by  an 
accord  and  satisfaction,  or  by  a  release. ^ 

§  422.  But  in  all  cases  where  the  occasion  itself  affords  prima 
facie  evidence  to  repel  the  inference  of  malice,  the  plaintijBf  may 
rebut  the  defence,  by  showing  that  the  object  of  the  defendant  was 
malignant,  and  that  the  occasion  was  laid  hold  of  as  a  mere  color 
and  excuse  for  gratifying  his  private  malice  with  impunity.^ 

§  423.  If,  from  the  plaintifFs  own  showing,  it  appears  that  the 
words  were  not  used  in  an  actionable  sense,  he  will  be  nonsuited.* 
But  if  the  plaintiff  once  establishes  o.  prima  facie  case,  by  evidence 
of  the  publishing  of  language  apparently  injurious  and  actionable, 
the  burden  of  proof  is  on  the  defendant,  to  explain  it.^  But  the  de- 
El.  5ii,N.S.  Though  the  expressions  and  voting,  or  pronouncing  the  result 
were  stronger  than  the  circumstances  re-  orally  or  in  writing,  provided  they  act  in 
quired,  it  is  still  a  question  for  the  jury  good  faith,  and  within  the  scope  of  the 
whether  they  were  used  with  intent  to  authority  of  the  church,  are  protected  by 
defame,  or  in  good  faith  to  communicate  law.  Farnsworth  v.  Storrs,  .5  Cush.  412. 
facts  interesting  to  one  of  the  parties.  And  where  a  vote  of  excomniunicatiou 
Dunman  v.  Bigg,  1  Campb.  269  n. ;  Ward  from  the  church  has  been  passed,  and  the 
V.  Smith,  4  C.  &  P.  302  ;  6  Bing.  749,  S.  offender  thereby  declared  to  be  no  longer 
C.  [A  complaint,  made  to  a  grand  jury,  a  member  of  the  church,  the  sentence  may 
being  a  proceeding  in  the  regular  course  nevertheless  be  promulgated  by  being  read 
of  justice,  cannot  be  deemed  a  libel.  Ked-  in  the  presence  of  the  congregation  by  the 
der  V.  Parkhurst,  3  Allen,  393.]  pastor.     Iliid.     See  also  Streety  v.  Wood, 

1  Coxhead  v.  Richards,  10  Jur.  984.  15  Barb.  105.  A  report  of  the  condition 
But  whether  such  communication  is  privi-  of  t!i£  town  schools  made  and  published,  as 
leged,  qucere.  Ibid.  And  see  Bennett  v.  required  by  law.  by  the  superintending 
Deacon,  13  Law  Journ.289,  N.  S. ;  BJa^k-  school  committee,  is  not  libellous,  no  cor- 
ham  V.  Pugh,  Id.  290;  Wilson  i*.  Robin-  rupt  motives  being  imputed,  by  reason  of 
son,  9  .Jur.  726.  cliarging  the  prudential  committee  of  one 

-  King  V.  Waring,  5  Esp.  13;  Smith  v.  of  the  districts  with  emplo}-ing  a  teacher, 
Wood,  3  Campb.  323 ;  Lane  v.  Applegate  and  putting  her  in  charge  of  a  public 
1  Stark.  R.  97.  [Words  spoken  in  good  school,  in  violation  of  law,  and  with  tak- 
faith,  and  within  the  scope  of  his  defence,  ing  possession  of  the  school-house  and 
by  a  party  on  trial  before  a  church  meeting,  excluding  by  force  the  general  school  corn- 
arc  privileged,  and  do  not  render  him  liable  mittee  and  tlie  teachers  employed  by  them. 
to  an  action,  although  such  words  charge  Shattuck  v.  Allen,  4  Gray,  540.] 
a  person  with  larceny.  York  f.  Pease,  2  ^  2  Stark.  Evid.  464;  Somervill  v.  Haw- 
Gray,  282.     All   persons  participating  in     kins,  supra. 

the  exercise  of  the  authority  which   con-         *  Thompson  v.  Bernard,  1  Campb.  48. 
gregational     churches    in    Massachusetts         ^  Penfold  f.  Westcote,  2  New  Rep.  335 ; 
have  of  dealing  with    their  members  on     Christie  v.   Cowell,  Peake's  Cas.   4,  and 
scandalous  or  immoral   conduct,  whether     note  by  Hay  ;  Button  v.  Hayward,  1  Vin. 
bv  complaining,  giving  testimony,  acting     Abr.  507,  in  marg. ;  8  Mod.  24.  S.  C. 


376 


LAW   OF   EVIDENCE. 


[part  IV 


fendant  is  entitled  to  have  the  whole  of  the  alleged  libel  read,  and 
the  whole  conversation  stated,  in  order  that  its  true  sense  and  mean- 
ino-  may  appear.  And  if  the  libel  is  contained  in  a  letter,  or  a 
newspaper,  the  whole  writing  or  paper  is  admissible  in  evidence.^ 
The  defendant  may  also  give  in  evidence  a  letter  written  to  him, 
containing  a  statement  of  the  facts  upon  which  he  founded  his 
charges,  to  show  the  bona  fides  with  which  he  acted.^ 

§  424.  It  is  perfectly  well  settled,  that,  under  the  general  issue, 
the  defendant  cannot  be  admitted  to  prove  the  truth  of  the  words, 
either  in  bar  of  the  action  or  in  mitigation  of  damages.^  And 
whether,  for  the  latter  purpose,  he  may  show  that  the  plaintiff  was 
generally/  suspected,  and  commonly  reported  to  be  guilty  of  the  par  • 
ticular  offence  imputed  to  him,  is,  as  we  have  seen,*  not  universal- 
ly agreed.  But  by  the  weight  of  authorities,  it  seems  settled  that 
the  defendant  may  impeach  the  plaintiff's  character,  by  general 
evidence,  in  order  to  reduce  the  amount  of  damages.^     And  if  the 


1  Weaver  v.  Lloyd,  1  C.  &  P.  295  ; 
Thomton  v.  Stephen,  2  M.  &  Kob.  45  ; 
Cooke  V.  Huffhes,  Ry.  &  M.  112. 

2  Blackburn  v.  Blackburn,  3  C.  &  P. 
146  ;  4  Bing.  305,  S.  C.  See  also  Fair- 
man  V.  Ives,  5  B.  &  Aid.  642 ;  Blake  v. 
Pilford,  1  M.  cS;  Rob.  198;  Pattison  v. 
Jones,  8  B.  &  C.  578. 

3  But  matters  which  fall  short  of  a  jus- 
tification, and  do  not  tend  to  it,  may  be 
shown  in  mitigation  of  damages,  under 
this  issue.  Snyder  v.  Andrews,  6  Barb. 
S.  C.  R.  43;  ToUett  v.  Jewett,  1  Am. 
Law  Reg.  p.  600. 

*  Supra,  §  275  ;  2  Stark,  on  Slander, 
pp.  77-95,  by  Wendell.  See  also  Waith- 
man  i^.  Weaver,  11  Price,  257,  n. ;  Wol- 
mer  i-.  Latimer,  1  Jur.  119.  Where  the 
defendant,  when  speaking  the  words,  re- 
ferred to  certain  current  reports  against 
the  plaintiff,  which  he  said  he  had  reason 
to  believe  were  true ;  it  was  held,  under 
the  general  issue,  that  he  might  prove,  by 
cross-examination  of  the  plaintiff's  wit- 
nesses, that  such  reports  had  in  fact  pre- 
vailed in  the  plain'titTs  neighborhood,  and 
were  the  common  topic  of  conversation, 
before  the  words  were  uttered  by  him. 
Richards  v.  Richards,  2  M.  &  Rob.  557. 
And  see  Morris  v.  Barker,  4  Harringt. 
520.  [Where  in  an  action  for  tlie  publi- 
cation of  a  libel  which  charged  the  plain- 
tiff with  dishonesty  and  bad  faith,  the 
defendant  cannot  ask  a  news-collector 
who  wrote  part  of  the  article  complained 
of,  "  what  infiuiries  and  examinations  he 
made,  and  what  sources  of  information 
he  applied  to,  before  making  the  commu- 


nications." Nor  can  he,  as  a  foundation 
for  such  a  question,  prove  that  there  was 
a  general  anxiety  in  the  community  in 
regard  to  the  facts  stated  in  the  publica- 
tion. Sheckell  v.  Jackson,  10  Cush.  25. 
Nor  can  he  show  circumstances  which  ex- 
cited suspicion  on  his  part,  and  furnished 
reasonable  cause  for  belief,  on  his  part- 
that  the  words  spoken  were  true.  Watson 
V.  Moore,  2  Cush.  133  ;  Dame  v.  Kenney, 
5  Poster,  318  ;  Knight  v.  Foster,  3  N.  H. 
576j  [*  But  in  Wethcrbee  v.  Marsh,  20 
N.  H.  561,  it  is  held  that  the  defendant 
may  prove  in  mitigation  of  damages  that 
when  the  words  were  uttered  a  general 
report  existed  that  the  plaintiff  had  com- 
mitted the  act  charged  ;  and  in  Parkhurst 
V.  Ketchum,  6  Allen,  406,  that  evidence 
was  not  admissible,  either  in  mitigation  of 
damages  or  as  a  justification  in  an  action 
of  slander  by  words  imputing  unchnstity 
to  a  woman,  to  show  that  the  defendant 
spoke  the  words  to  her,  and  was  led  to  do 
so  by  her  general  conduct,  and  especially 
by  her  deportment  with  a  particular  man, 
believing  the  same  to  be  true  ;  but  in  such 
a  case,  evidence  that  the  plaintiff's  general 
reputation  is  bad,  independently  of  the 
slander  of  which  she  complains,  and  tliatit 
was  so  even  ten  years  before  and  at  anoth- 
er place,  is  admissible  in  mitigation  of  dam- 
ages.] 

5  Ante,  Vol.  1,  §  55  ;  Paddock  v.  Salis- 
bury, 2  Cowen,  811.  It  must  be  (jenerai 
evidence.  Loss  v  Lapliam,  14  Ma-^s.  275  ; 
[*  Huff  ».  Bennett,  6  N.  ¥.337.)  Stone 
V.  Varney,  7  Met.  86.  In  this  case,  tlie  de- 
cisions   on  this  much-controverted   point 


PART  IV.] 


LIBEL  AND   SLANDER. 


377 


plaintiff  declares  that  he  was  never  guilty,  nor  suspected  to  be  guilty 
of  the  crime  imputed  to  him,  it  has  been  held,  that  the  defendant 


were  fuUv  reviewed  by  Mr.  Justice  Dewey, 
whose  observations  cannot  but  be  accepta- 
ble, in  this  place,  to  the  reader.  It  will  bo 
observed  that,  in  Massachusetts,  the  general 
issue  may  always  be  pleaded,  accompanied 
by  a  notice  of  the  special  matter  of  defence 
intended  to  bo  set  up.  Having  stated  the 
question  to  be  whether  the  defendant  can, 
in  an  action  of  slander,  under  the  general 
issue  accompanied  by  a  notice  that  he  will 
offer  evidence  to  establish  the  truth  of  the 
charge  in  justification,  give  in  evidence  the 
general  character  of  the  plaintiff  in  miti- 
gation of  damages  ;  the  learned  judge  pro- 
ceeded as  follows  :  "  This  question  is  not 
new,  but  one  that  has  often  arisen,  and 
been  the  subject  of  consideration.  It  was 
much  discussed  in  the  case  of  Foot  v.  Tra- 
cy, 1  Johns.  46,  where  it  arose,  however, 
under  tlie  single  plea  of  the  general  issue, 
but  was  not  decided  ;  the  members  of  the 
court  who  gave  opinions  being  equally  di- 
vided. Kent  and  Thompson,  Js.,  were  for 
its  admission,  and  Livingston  and  Tomp- 
kins contra.  In  a  later  ca'^e,  reported  in 
Anthon,  185,  Springstein  v.  Field,  Spencer, 
J.,  took  occasion  to  remark,  tliat  he  had  no 
doubt  about  the  admissiltility  of  the  evidence 
offered  in  the  case  of  Foot  v.  Tracy,  but 
for  particular  reasons  connected  with  that 
case,  he  forebore  to  express  any  opinion 
on  the  hearing  of  the  same.  In  Paddock  v. 
Salisbury,  2  Cow.  811,  the  question  came 
again  before  the  Supreme  Court  of  New 
York,  when  it  was  held  that  evidence  of 
general  character  was  admissible  in  mitiga- 
tion of  damages,  under  the  general  issue, 
which  was  the  only  pica  filed  in  that  case. 
"  This  subject  was  much  considered  in 
the  case  of  Root  v.  King,  7  Cow.  613. 
The  court  there  held  that  public  reports 
of  the  facts  stated  in  the  libel  were  inad- 
missible as  evidence  in  mitigation  of  dam- 
ages, where  a  plea  in  justification  had  been 
filed,  alleging  the  truth  of  the  matter  stated 
in  the  libel ;  but  they  also  held  that  the 
general  character  of  the  plaintiff  was  put 
in  issue  in  an  action  of  slander,  without 
regard  to  the  pleading  or  notice  of  defence 
on  the  part  of  the  defendant.  Chief  Jus- 
tice Savage  says :  '  Under  any  circum- 
stances, the  defendant  may  show  that  the 
plaintiff's  reputation  has  sustained  no  in- 
jury, because  he  had  no  reputation  to 
lose.'  '  The  rule  is  admitted,  that  the 
general  character  may  be  attacked,  be- 
cause this  is  relied  upon  as  the  ground  of 
damages,  and  the  plaintiff  is  supposed  at 
all  times  to  be  prepared  to  sustain  his  gen- 
eral character  '  See  also  Inraan  v.  Foster, 
8  Wend.  602,  ace.    Mr.  Greenleaf,  in  his 


Treatise  upon  Evidence,  Vol.  1 ,  §  5.5,  says . 
'  Whether  evidence  impeaching  the  plain- 
tiff's general  character  is  admissible  in  an 
action  of  slander,  as  affecting  the  damages, 
is  a  point  which  has  been  much  contro- 
verted, but  the  weight  of  authority  is  in 
favor  of  admitting  such  evidence.  In  2 
Stark.  Ev.  369,  it  is  said,  that  in  actions 
of  slander,  where  the  defendant  has  not 
justified,  evidence  of  the  plaintiff's  bad 
character  is  admissible  in  reduction  of 
damages  ;  and  in  page  878  the  author  says  : 
'  General  evidence  of  bad  character  seems 
to  be  admissible,  although  the  defendant 
has  justified  that  the  imputation  is  true; 
for  if  the  justification  should  fail,  the  ques- 
tion as  to  the  quantum  of  damages  wo  uld 
still  remain.'  And  sucii  evidence  has  been 
held  admissible  in  North  Carolina,  Ohio, 
and  Kentuckji,  when  a  justification  and 
the  general  issue  are  both  pleaded.  Vick 
V.  Whitfield,  2  Hayw.  222;  Dewit  v. 
Greenfield,  5  Ham.  275  ;  Eastland  v.  Cald- 
well, 2  Bihb,  21  ;  Calloway  v.  Middleton, 
2  A.  K.  Marsh.  372.  See  also  Sawyer  v. 
Hopkins,  9  Shepley,  268. 

"  In  New  York,  as  before  seen,  such 
evidence  has  been  admitted,  where  the 
general  issue  has  been  the  only  plea.  So 
in  Connecticut,  Peiuisijlrania,  South  Caro- 
lina, and  New  Hampshire.  Brunson  v. 
Lynde,  1  Root,  354 ;  Austin  v.  Hanchett, 
2  Root,  148;  Henry  v.  Norwood,  4  Watts, 
347;  Buford  v.  M'Luny,  1  Nott  &  Mc- 
Cord,  268  ;  Sawver  v.  Ertert,  2  Nott  &  Mc- 
Cord,  51 1  ;  Lambs  v.  Snell,  6  N.  Hamp.  413. 
See  also  Waters  v.  Jones,  3  Porter,  442. 

"  In  our  own  case,  we  shall  find  that  the 
general  principles  stated  in  Earned  v. 
Buftington,  3  Mass.  546,  bear  upon  this 
question.  The  precise  question  of  the 
competency  of  evidence  touching  the  plain- 
tiff's moral  character  was  there  waived,  as 
no  such  evidence  was  embraced  in  the  pro- 
posed proof.  But  it  was  ruled,  that  it  was 
competent  to  give  in  evidence  the  plaintiff's 
rank  and  condition  in  life,  either  on  the 
general  issue  or  a  traverse  of  a  justifica- 
tion ;  and  the  reasons  assigned  are,  that 
'  the  degree  of  injury  the  plaintift'may  sus- 
tain by  the  slanderer  may  very  much  de- 
pend on  his  rank  and  condition  in  society,' 
and  also,  that'll  is  a  fact,  in  its  nature, 
of  general  notoriety.'  In  Wolcott  v.  Hall, 
6  Mass.  518,  in  which  there  was  a  justifi- 
cation pleaded,  evidence  was  offered,  in 
mitigation  of  dam.ages,  of  general  reports, 
tliat  the  plaintiff  had  been  guilty  of  the 
crime  imputed  to  him  in  the  slar  Jerous 
words,  i'liis  was  rejected ;  but  it  was 
said  by  the  court,  that  evidence  oi  general 


378 


LAW   OF   EVIDENCE. 


[part  IV. 


may  disprove  the  latter  allegation,  by  evidence  showing  that  he 
was  suspected.^     The  defendant  may  also  show,  upon  the  question 


bad  character  may  be  considered  by  the 
jury;  'for  the  worth  of  a  man's  general 
reputation  among  his  fellow-citizens  may 
entitle  him  to  large  damages  for  an  attempt 
to  injure  it ;  which  he  ought  not  to  ob- 
tain, if  his  character  is  of  little  or  no  esti- 
mation in  society.'  The  principle  here 
settled  seems  to  be  that  particular  reports, 
injurious  to  one's  reputation,  are  to  be 
rejected,  but  a  bad  general  character  may 
be  shown  in  mitigation  of  damages ;  and 
this,  though  a  justification  be  pleaded. 
Alderman  v.  Frcncli,  1  Pick.  1,  ■went  no 
further  than  to  hold  that  evidence  of  a 
general  report  that  the  plaintiff  had  been 
guilty  of  the  crime  imputed  to  liim  could 
not  be  received  in  mitigation  of  damages. 
In  Koss  V.  Lapiiam,  14  Mass.  279,  which 
was  an  action  on  the  case  for  slanderous 
words,  charging  the  plaintiff  with  jjerjury, 
and  in  which  the  court  held  it  incompe- 
tent to  offer  in  evidence,  in  mitigation  of 
damages,  that  the  plaintiff  was  an  atheist, 
yet  it  was  assumed  that,  by  commencing 
an  action  of  slander,  '  the  plaintiff  put  his 
general  reputation  at  issue.'  See  also 
Commonwealth  v.  Snelling,  15  Pick.  344, 
which  seems  to  recognize  the  same  pi'inci- 
ple.  In  Bodwell  v.  Swan,  3  Pick.  378, 
wiiile  it  was  held  that  reports  of  particular 
facts  were  inadmissible,  it  was  declared, 
as  the  rule  of  law,  that  '  the  general  bad 
character  of  the  plaintiff  may  be  shown, 
because  lie  relics  upon  its  goodness,  before 
calumniated,  as  the  principal  ground  of 
damages.  A  fair  character  has  been  ma- 
liciously attacked,  and  the  law  will  repair 
the  mischief  by  damages  ;  l)ut  to  a  reputa- 
tion already  soiled  the  injury  is  small." 

"  The  English  doctrine,  as  stated  in 
Earl  of  Leicester  v.  Walter,  2  Campb.  251, 

and V.  Moor,  1  M.  &  S.  284,  seems  to 

go  further  than  these  doctrines,  and  to 
authorize  the  admission  of  mere  public 
reports  that  the  plaintiff  was  guilty  of  the 
crime  imputed  to  him  by  the  defendant. 
See  also  Richards  v.  Richards,  2  M.  & 
Rob.  557  ;  3  Stephens,  N,isi  Prius,  2578. 
But  this  rule  has  not  prevailed  with  us, 
and  is  supposed  by  Mr.  Justice  Jackson, 
in  his  opinion  in  Alderman  v.  French,  1 
Pick.  18,  19,  to  have  hecn  only  intended  as 
an  atlmission  of  evidence  of  the  general  rep- 
utation and  standing  of  tlie  plaintiff.  In 
this  view,  they  would  bear  upou  the  qucs- 

1  Earl  of  Leicester  v.  Walter,  2  Campb. 
251.  But  in  an  action  for  a  libel,  which 
was  actionable  only  in  res])ect  of  thejjlain- 
titf's  office,  where  his  due  discharge  of  its 
duties  was  averred,  the  defendant  was  not 


tion.  As  admissions  of  reports,  we  should 
reject  them  as  authority. 

"  It  is  said,  that  the  more  recent  English 
cases  seem  to  consider  evidence  of  general 
bad  character  as  irrelevant,  and  therefore 
inadmissible.  It  would  seem,  from  the 
report  of  the  case  of  Cornwall  v.  Richard- 
son, Ry.  &  Mood.  305,  that  evidence  of 
general  good  character  was  held  not  to 
be  admissible,  for  the  plaintiff,  where  the 
defendant  had  filed  special  pleas  of  justifi- 
cation, as  well  as  the  general  issue ;  and 
the  presiding  judge  seems  to  have  assumed 
that  such  evidence  was  not  competent  to 
either  party.  See  also  Stow  v.  Converse, 
3  Conn.  326 ;  Matthews  v.  Huntley,  9 
N.  Hamp.  146.  This  decision  is  directly 
opposed  to  the  case  of  Harding  v.  Brooks, 
5  Pick.  244.  In  Jones  v.  Stevens,  11 
Price,  255,  which  contains  much  reason- 
ing against  the  competency  of  such  evi- 
dence, the  question  arose  upon  a  plea  in 
justification,  containing  general  allega- 
tions against  the  plaintiff''s  character, 
and  the  real  question  was,  whether  it 
was  competent  to  support  the  plea,  and 
disprove  the  declaration,  by  producing 
evidence  that  tlie  general  character  of  the 
plaintiff,  as  an  attorney,  wa«  bad.  This  is 
the  view  taken  of  that  case  by  Mr.  Green- 
leaf,  in  his  note  to  §  55  of  tlie  first  volume 
of  his  Treatise  on  Evidence. 

"  This  review  of  the  adjudicated  cases, 
and  particularly  the  decisions  in  this  Com- 
monwealth, and  in  the  State  of  New  York, 
seems  necessarily  to  lead  to  tlie  conclusion, 
that  evidence  of  general  bad  character  is 
admissible  in  mitigation  of  damages.  That 
it  is  so  wliere  no  justification  had  been 
pleaded,  seems  to  be  everywhere  sanc- 
tioned, unless  a  contrary  opinion  is  found 
in  the  recent  English  decisions  to  which  I 
have  alluded.  Suggestions  have  been 
made,  in  some  of  the  cases,  that  such  evi- 
dence was  not  admissible  where  the  de- 
fendant pleaded  the  truth  in  justification. 
But  upon  principle,  this  distinction,  I  ap- 
prehend, will  be  found  untenable.  There 
is,  doubtless,  a  class  of  cases,  where  the 
defendant,  by  pleading  the  truth  in  justifi- 
cation,  may  deprive  himself  of  a  defence 
upon  which  he  might  have  relied,  if  he  had 
pleaded  the  naked  general  issue ;  as  that 
the  words  were  spoken  in  passion,  in  giv- 
ing the  character  of  a  servant,  &c.     In 

permitted,  under  the  general  issue,  to 
disprove  this  averment,  by  evidence  of  the 
plaintiff's  negligence  in  discharging  his 
official  duties.  Dance  v.  Robsou,  1  M.  & 
Malk.  294. 


PART  IV.] 


LIBEL  AND   SLANDER. 


379 


of  damages,  under  this  issue,  that  the  charge  was  occasioned  by 
the  misconduct  of  the  plaintiff  either  in  attempting  to  commit  the 
crime,  or  in  leading  the  defendant  to  believe  him  guilty,  or  in  con- 
temporaneously assailing  the  defendant  with  opprobrious  language ; 
or,  that  it  was  made  under  a  mistake  which  was  forthwith  correct- 
ed ;  1  or,  that  he  had  the  libellous  statement  from  a  third  person ;  ^ 


such  cases,  the  very  fact  of  pleading  a 
justification,  and  putting  upon  the  record 
an  allegation  of  the  truth  of  the  words,  has 
been  supposed  to  take  away  the  defence 
of  the  character  above  alluded  to.  But 
under  our  statutes  (Rev.  Stats,  c.  100, 
§§  18,  19),  perhaps  even  this  rule  may  be 
considered  as  modified,  and  indeed  effect- 
ually changed.  By  §  18,  it  is  provided 
that  matter  in  one  plea  shall  be  no  evi- 
dence in  another  ;  and  by  §  19,  that  a 
plea  in  justification  in  slander,  that  the 
words  spoken  were  true,  shall  not  be  proof 
of  malice. 

"  The  reasons  which  authorize  the  ad- 
mission of  this  species  of  evidence,  under 
the  plea  of  general  issue,  seem  alike  to 
exist,  and  to  require  its  admission,  where 
a  justification  has  been  pleaded,  but  the 
defendant  has  failed  in  sustaining  it.  It  is 
not  offered  in  either  case,  as  sustaining  th§ 
justification,  or  making  out  a  defence, 
but  is  solely  applicable  to  the  question 
of  damages.  I  agree  with  Mr.  Justice 
Thompson,  in  his  opinion,  as  stated  in 
Foot  V.  Tracy,  1  Johns.  47,  that  '  it  can- 
not be  just  that  a  man  of  infamous  charac- 
ter should,  for  the  same  libellous  matter, 
be  entitled  to  equal  damages  with  the  man 
of  unblemished  reputation  ;  yet  such  must 
be  the  result,  unless  character  be  a  proper 
subject  of  evidence  before  a  jury.'  Ld. 
Ellenborough,  in  1  M.  &  S.  286,  also  says: 
*  Certainly  a  person  of  disparaged  fame  is 
not  entitled  to  the  same  measure  of  dam- 
ages with  one  whose  character  is  unblem- 
ished ;  and  it  is  competent  to  show  that 
by  evidence.' 

"  The  theory  of  trials  is,  that  the  jury 
are  to  decide  solely  upon  the  evidence 
before  them.  If  so,  they  surely  cannot 
make  the  distinction  between  a  plaintiff 
of  good  name  and  fame,  and  one  who  is 
really  infamous,  unless  evidence  of  this 
fact  is  allowed  to  be  given.  Cases  often 
occur  where  the  jury  are  entire  strangers 
to  the  parties,  and  if  not  so,  they  ought 
not  to  act  upon  statements  of  any  of  their 
fellows,  given  in  the  jury-room,  and  not 
under  the  sanction  of  an  oath.  There 
seems  to  be  no  alternative  but  to  admit 
this  species  of  evidence  ;  and  this  as  well 
when  there  is  a  justification  pleaded  as 
when  the  defence  is  on  the  general  issue 


alone.  In  the  former  case,  the  evidence  is 
to  be  applied  solely  to  the  question  of 
damages  ;  and  it  would  be  the  duty  of  the 
court  to  advise  the  jury  that  it  could  not 
be  used  to  sustain  the  justification,  but 
was  properly  introduced,  because  both  ques- 
tions were  before  them,  and  if  the  justifi- 
cation failed,  upon  the  evidence  applicable 
thereto,  they  would  consider  the  evidence 
of  the  character  of  the  plaintiff,  in  assessing 
damages  for  the  injury  occasioned  by  the 
defamatory  words  ;  but  for  other  purposes 
the  evidence  would  be  irrelevant.  This 
evidence  should  be  confined  to  the  general 
character  of  the  plaintiff,  as  it  existed 
before  the  publication  of  the  slanderous 
words."  See  7  Met.  88-94.  In  AVillis- 
ton  i».  Smith,  3  Kerr,  443,  it  was  held 
by  the  Supreme  Court  of  New  Brunswick, 
that  the  evidence,  in  order  to  be  admissi- 
ble, must  relate  to  the  plaintiff's  general 
reputation  in  respect  to  the  subject-matter 
of  the  charge.  See  also  Bowen  v.  Hall, 
12  Met.  232;  Hamer  ?;.  McFarlin,  4  Dcn- 
io,  509.  [In  Leonard  v.  Allen,  11  Cush. 
241,  the  inquiries  were  restricted  to  the 
general  character  of  the  plaintiff  for  integ- 
rity and  moral  worth,  or  to  his  reputation 
in  regard  to  conduct  similar  in  character 
to  the  offence  with  which  the  defendant 
had  charged  him.  In  "Watson  v.  Moore,  2 
Cush.  133,  which  was  an  action  by  the 
husband  and  the  wife  for  words  spoken  of 
the  wife  by  the  defendant,  charging  her 
with  larceny,  it  was  held  that  the  defend- 
ant cannot  show  that  the  husband  keeps  a 
disorderly  wife,  in  mitigation  of  damages.] 
[*In  Gandy  v.  Humphries,  35  Ala.  6)7,  it 
was  held  that  the  plaintift''s  "  rank  in  so- 
ciety "  is  inadmissible  on  the  question. of 
damages  when  there  is  no  averment  of  that 
fact  in  the  complaint  and  no  claim  of  spe- 
cial damages  on  that  account.] 

1  iSupra,  §  275;  Bradley  v.  Heath,  12 
Pick.   163;  infra,  §  426. 

^  Buncombe  v.  Daniell,  2  Jur.  32 ; 
Maitland  v.  Goldney,  2  East,  426  ;  Ilaynes 
V.  Leland,  16  Shepl.  233;  sed  vid.  Mills  v. 
Spencer,  Holt's  Cas.  513.  Its  eflect  will 
depend  on  the  intent  with  which  the  name 
of  the  author  was  mentioned.  Dole  v. 
Lyon,  10  Johns.  447.  The  fact  that  the 
defendant  heard  tlie  words  from  another, 
whose  name   he   mentioned    at   the   time 


380  LAW  OF  EVIDENCE.  [PART  I^. 

or,  being  the  proprietor  of  a  newspaper,  that  he  merely  copied  the 
statement  from  another  paper,  giving  his  authority  ;  ^  or,  that  he 
was  insane,  and  known  to  be  so,  at  the  time  of  speaking  the  words.* 
And  in  an  action  for  a  libel  upon  the  plaintiff  in  his  trade  of  book- 
seller, as  the  publisher  of  immoral  and  foolish  books,  it  has  been 
held,  that  the  defendant,  under  this  issue,  may  show  that  the  sup- 
posed libel  is  nothing  more  than  a  fair  stricture  upon  the  general 
nature  of  the  plaintiff's  publications.^ 

§  425.  It  is  obvious  that  evidence  in  mitigation  of  damages  must 
be  such  as  involves  an  admission  of  the  falsity  of  the  charge.  If 
the  defendant  would  prove  that  tbe  cliarge  is  true,  he  can  do  this 
only  under  a  special  plea  in  justification  ;  it  is  only  evidence  of 
facts  not  sufficient  to  justify  that  is  admissible  under  the  general 
issue,  to  reduce  the  damages.*  And  if  such  facts  have  been  special- 
ly pleaded  in  justification,  but  the  plea  is  withdrawn  before  the 
trial,  and  the  plaintiff  is  therefore  not  prepared  with  evidence  to 
disprove  it,  the  defendant  may,  under  the  circumstances,  still  be 
permitted  to  prove  the  facts  under  the  general  issue,  to  affect  the 
amount  of  damages  to  be  recovered.^  It  has  also  been  held,  that 
where  the  facts  offered  in  evidence  in  mitigation  of  damages  would 
be  sufficient  to  justify  a  part  only  of  the  libel,  they  must  be  special- 
ly pleaded  in  justification  of  that  part,  and  cannot  otherwise  be  re- 
ceived.^ But  these  rules,  it  is  conceived,  do  not  preclude  the  de- 
fendant from  showing,  under  the  general  issue,  all  such  facts  and 
circumstances  as  belong  to  the  res  gestce,  and  go  to  prove  the  in- 
tent with  which  the  words  were  spoken  or  the  publication  was 
made.^     And  if  a  justification  is  pleaded,  the  defendant  may  still 

of  speaking  them,   was  formerly  held   a  Me.  502,  that  in  the  assessment  of  damages 

good  justijication,  and  therefore  pleadable  the  jury  may  take  into  consideration  the 

in  bar.     See  1  Stark,  on  Slander,  ch.  xiv.  ;  wealth  of  the  defendant.] 

Id.  p.  301,  note  (1),  by   Wendell.     But  &  j^ast  v.  Chapman,  2  C.  &  P.  570;  ) 

this  doctrine  has  been  solemnly  denied  in  M.  &  Malk.  46,  S.  C. 

the  United  States  ;  Ibid. ;  Dole  v.  Lyon,  ^  Vesey  v.  Pike,  3  C.  &  P.  512. 

10  Johns.  447  ;  and  has  of  late  been  repu-  ">  See  2  Stark,  on  Slander,  p.  88,  n.  (1), 

diatcd    in    England.      Do    Crespigny   v.  by   Wendell.     In   several   of  the    United 

Wellesley,  5  Bing.  392.  States,  the  course  is  to  plead  Hie  general 

1  Saunders  v.  Mills,  6  Bing.  213;  issue  in  all  cases,  with  a  brief  statement  of 
Creeve  v.  Carr,  7  C.  &  P.  64.  See  also  the  special  matter  to  be  given  in  evidence 
MuUett  V.  Hulton,  4  Esp.  248 ;  Wyatt  v.  under  it.  It  has  been  held,  that  where 
Gore,  Holt's  Cas.  303 ;  East  v.  Chapman,  such  statement,  in  an  action  of  slander,  is 
2  C  &  P.  570  ;  1  M.  &  Malk.  46,  S.  C.  ruled  out,  as  not  amounting  to  a  justifica- 

2  Dickinson  v.  Barber,  9  Mass.  225.  tion,  the  matter  is  not  admissible  in  evi- 
8  Tabart  v.  Tipper,  1  Campb.  350.  dence  in  mitigation  of  damages ;  for  the 
*  Underwood  v.  Parkes,  2  Stra.  1200;     reason  that,  so  far  as  it  goes,  it  tends  to 

Knobell  v.  Fuller,  Peake's  Ad.  Cas.  139  ;  prove  the  charge  to  be  well  founded. 
Andrews  v.  Vauduzer,  11  Johns.  38.  Cooper  v.  Barber,  24  Wend.  105.  And 
[*It  is  held  in  Humphries  v.  Parker,  52     see  Turrill  v.  DoUoway,  17  Wend.  426 


PART  IV.] 


LIBEL   AND   SLANDER. 


381 


give  general  evidence,  in  mitigation  of  damages,  under  the  general 
issue,  though  he  will  not  be  permitted,  under  a  plea  in  justifica- 
tion, to  give  evidence  of  particular  facts  and  circumstances  respect- 
ing the  charge,  which  go  merely  to  the  amount  of  damages.^ 

§  426.  To  support  a  special  plea  in  justification,  where  crime  is 
imputed,  the  same  evidence  must  be  adduced  as  would  be  necessa- 
ry to  convict  the  plaintiff  upon  an  indictment  for  the  crime  imput- 
ed to  him  ;  and  it  is  conceived,  that  he  would  be  entitled  to  the 
benefit  of  any  reasonable  doubts  of  his  guilt,  in  the  minds  of  the 
jury,  in  the  same  manner  as  in  a  criminal  trial.  And  if  the  evi- 
dence falls  short  of  proving  the  commission  of  the  crime,  the  jury 
may  still  consider  the  circumstances,  as  tending  to  show  that  the 
defendant  had  probable  cause  to  believe  the  charge  to  be  true,  and 
to  lessen  the  character  of  the  plaintiff,  and  therefore  to  reduce  the 
amount  of  damages.^     But  wherever  the  truth  of  a  charge  of  crime 


But  the  soundness  of  these  decisions  has 
been  combated,  with  great  force  of  reason- 
ing, by  Mr.  Wendell,  in  the  Introduction 
to  hisvaluable  edition  of  Starkie  on  Slan- 
der, pp.  27  -  55.    [*  "  The  rule  upon  which 
these  decisions  proceed  was  merely  an  un- 
foreseen consequence  of  the  rule  which  ex- 
cluded proof  of /Ae  truth  of  the  charge  under 
the  general  issue  in  mitigation  of  damages  : 
a  rule  which  originated  with  the  case  of 
Underwood  y.  Parks,  2  Stra.  1200.     The 
intrinsic  propriety  or  impropriety  of  the 
evidence  had  nothing  to  do  with  the  adop- 
tion of  the  rule.     It  was  a  rule  of  pleading 
merely,  having  no   other   object   than  to 
prevent  plaintiffs  from  being  taken  by  sur- 
prise  upon   the   trial  by  evidence  of  the 
truth  of  the  charge  without  notice.     This 
was  very  well  in  cases  where  the  defendant 
was  prepared  to  justify,  which  cases  alone 
the  judges  had  in  view  in  adopting   the 
rule.     But  when  the  doctrine  came  to  be 
applied  to  cases  where  all  the  defendant 
could  or  desired  to  do  was  to  mitigate  the 
damages  by  showing  the  absence  of  malice, 
it  took  away  the  right  altogether,  since  the 
rules  of  pleading  did  not  allow  anything 
short  of  a  complete  defence  to  be  proved 
upon    the  record.     The  conceded  right  of 
the  defendant  to  micigate  the  damages,  by 
showing  the  absence  of  malice  and  the  rule 
were  directly  repugnant  to  each  other,  and 
no  question  has  ever  given  rise  to  a  more 
protracted  struggle.     The  courts  in  Eng- 
land, under  a  sense  of  the  admitted  right, 
have  in  a  number  of  cases  decided   that 


Leicester  v.  Walter,  2  Campb.  251.  But 
the  courts  in  New  York  and  in  Massachu- 
setts, with  less  justice  but  better  logic,  have 
uniformly  held  that  a  rule  which  excluded 
proof  of  "the  truth  of  the  charge  must  neces- 
sarily exclude  evidence  tending  to  prove 
it."  Selden,  J.,  in  Bush  v.  Prosser,  11  N. 
Y.  347.  The  rule  is  now  changed  in  New 
York  by  the  Code.  See  also,  to  same 
point,  Bisbey  v.  Shaw,  12  N.  Y.  71,  and 
opinion  of  Ruggles,  J.  In  Knight  v. 
Foster,  39  N.  H.  576,  it  is  held  that  ev- 
idence of  the  truth  of  the  words  spoken 
is  not  admissible  under  general  issue, 
either  to  rebut  malice  or  mitigate  dam- 
ages.] 

1  2  Stark,  on  Slander,  pp .  83  -  94,  and 
notes,  by  Wendell.  See  also  Stone  v. 
Varney,  7  Law  Reporter,  533 ;  Mullett  v. 
Hulton,  4  Esp.  248  ;  East  v.  Chapman,  2 
C.  &  P.  570  ;  1  M.  &  Malk.  46,  S.  C. ; 
Newton  v.  Rowe,  1  C.  &  K.  616;  Cran- 
dall  V.  Dawson,  1  Gilm.  111.  R.  556.  But 
see  Earned  v.  Buflfington,  3  Mass.  546. 

2  Chalmers  v.  Shackoll,  6  C.  &  P.  475; 
supra,  §  408;  Gants  v.  Vinard,  I  Smith, 
287;  Lanter  v.  McEwcn,  8  Blackf.  495; 
Hopkins  v.  Smith,  3  Barb.  S.  C.  R.  599  ; 
Shortly  v.  Miller,  1  Smith,  395;  Mine- 
singer  V.  Kerr,  9  Barr.  312.  A  charge 
of  polygamy,  by  marrying  tliree  persons, 
may  be  justified  by  proof  of  actual  mar- 
riage to  two  wives,  and  cohabitation  and 
reputation  as  to  the  third.  Wilmett  v. 
Harmer,  8  C.  &  P.  695.  [*  In  Fero  v. 
Ruscoe4N.  Y.  162,  it  was  held,  that  where 


facts   and    circun^tances   falling  short    of  the  defendant  justifies   in  his   pleaduigs, 

proving,   although   tending    to    prove    the  but  his  evidence  under  that  plea  fails  to 

truth   of  the  charge,   might   be    received  make  out  a  full  justification,  he  is  not  eu- 

in  mitigation.     Knobell   v.  Fuller,  sujyra;  titled  to  any  benfjit  from    such  evidence. 


38w  LAW   OF  EVIDENCE.  [PART  IV. 

is  pleaded  in  justification,  the  plaintiff  may  give  his  own  character 
in  evidence,  to  rebut  the  charge.^ 

§  427.  Where  the  libel  is  upon  a  lawyer,  charging  him  with  di- 
vulging co7ifidential  communications  made  to  him  by  his  client,  it  is 
not  necessary  for  the  defendant,  in  support  of  a  plea  in  justifica- 
tion, to  prove  that  the  communications  were  of  such  strictly  privi- 
leged character,  that  the  plaintiff  could  not  have  been  compelled 
to  disclose  them,  if  called  as  a  witness  in  a  court  of  justice  ;  but  it 
will  suffice  to  show  that  the  matters  disclosed  by  the  plaintiff  were 
confidential  communications,  acquired  by  him  professionally,  in 
the  more  enlarged  and  popular  sense  of  the  word.^ 

§  428.  Where  the  matter  is  actionable  only  in  respect  of  the 
special  damage,  the  plaintiff  must  generally  show  express  malice 
in  the  defendant.  Such  is  the  case  in  actions  for  slander  of  title.^ 
In  these  cases,  the  defendant,  under  the  general  issue  and  in  dis- 
proof of  malice,  may  give  in  evidence,  that  he  spoke,  the  words, 
claiming  title  in  himself ;  *  or,  as  the  attorney  of  the  claimant ; 
or,  that  the  words  were  true.^ 

§  429.  In  actions  of  this  nature,  where  the  general  issue  is 
pleaded,  with  a  justification,  the  usual  course  is  for  the  plaintiff 
to  prove  the  libel,  and  leave  it  to  the  defendant  to  make  out  his 
justification  ;  after  which  the  plaintiff  offers  all  his  evidence  rebut- 
ting the  defence.  And  if  the  plaintiff  elects,  in  the  opening  of  his 
case,  to  offer  any  evidence  to  repel  the  justification,  he  is  ordinari- 
ly required  to  offer  it  all  in  that  stage  of  the  cause,  and  is  not  per- 
mitted to  give  further  evidence  in  reply.^  But  this  rule  is  not  im- 
perative, the  subject  resting  in  the  discretion  of  the  judge,  under 
the  circumstances  of  the  case.'^ 

and  that  pleading  a  justification,  and  a  ^   Moore  v.  Terrell,  4  B.   &   Ad.    870. 

failure  to  make  out  a  justification,  is  in  law  But  see  Riggs  v.  Denniston,  3  Johns.  Cas. 

an  aggravation  of  the  slander.]  198. 

1  Harding  v.  Brooks,  5  Pick.  244.    Such  ^  [*  To   maintain  an  action  of  slander 

is    the    rule    in    criminal   jurisprudence,  of  title  to  land,  the  words  must  not  only  be 

"  The  object,"  said  Patteson,  J.,  "  of  laying  false  but  they  must  be  uttered  maliciously, 

it  before  the  jury,  is  to  induce  them  to  be-  and  be  followed,  as  a  natural  and  legal  con- 

lieve,  from  the  improbability  that  a  person  sequence,  by  a  pecuniary  damage  to  the 

of  good  character  should  have  conducted  plaintiff,  which  must  be  specially  alleged 

himself  as  alleged,  that  there  is  some  mis-  in  the  declaration  and  substantially  proved 

take  or  misrepresentation  in  the  evidence  on  the  trial.    Kendall  v.  Stone,  5  N.  Y.  18.] 

on  the  part  of  the  prosecution,  and  it  is  *  Smith  v.  Spooner,  3  Taunt.  246. 

strictly   evidence   in   the  case."    Rex   v.  ''  "Watson  v.  Reynolds,  1  M.  &  Malk.  1  ; 

Stannard,  7  C.  &  P.  673.      Such  also  is  2  Stark,  on   Slander,  pp.  98,    99,    [103], 

the  law  in  Scotland.  Alison's  Prac.  p.  629.  [104]  ;  Pitt  v.  Donovan,  1  M.  &  S.  639. 

And  sec  the  State  v.  Wells,  Coxc,  R.  424;  ^  Btowne  ».  Murray,  Ry.   &  M.  254; 

Wills,  on  Circumst.  Ev.  p.  131.     But  see,  ante,  Vol.  1,  §  431. 

contra,   Hough taling    v.    Kelderhouse,    1  ^  -pov  the  damaqes  in  this  action,  see  su- 

Comst.  530;  2  Barb.  S.  C.  R.  149.  pra,  tit.  Damagks,  §  275. 


PAET  IV.] 


LIMITATIONS.  383 


LIMITATIONS. 

[♦  §  430.  Statute  of  limitations  a  defence  to  rights  of  entry  or  rights  of  action.    Wnat 

defendant  claiming  land  under  long  possession  must  show. 

431.  Burden  of  proof  is  on  the  plaintiff  to  show  both  a  cause  of  action  and  the 

suing  out  of  process  within  the  period  mentioned  in  the  statute. 

432.  When  writ  is  abated  by  death  or  marriage  of  plaintiff,  operation  of  statute  is 

prevented  by  bringing  new  suit  within  reasonable  time,  ordinarily  one  year. 

433.  In  cases  of  for/,  where  injury  is  consequential,  statute  begins  to  run  from  time 

when  special  damage  accrued. 

434.  Same  rule  adopted  in  expounding  statutes  which  have  limited  the  remedy  to 

a  certain  period  of  time  from  the  act  done. 

435.  In  cases  of  contract,  general  principle  is  that  statute  attaches  as  soon  as  con 

tract  is  broken. 

436.  Defences  to  the  statute. 

437.  Defendant  being  "  beyond  sea  "  equivalent  to  being  "  out  of  the  actual  juris 

diction  "  of  the  State.     Foreigner  resident  abroad  not  within  the  statute. 

438.  Absence  of  one  partner  from  tlie  State  does  not  prevent  the  statute  from  attach- 

ing- .  . 

439.  When  the  statute  has  once  begun  to  run,  no  disabiUty  subsequently  arising 

will  arrest  its  progress. 
n.  4.  In  some  States  diflerent  rule  by  statute. 

440.  New  promise  to  bar  the  statute  must  be  unequivocal  and  be  clearly  proved 

May  be  implied  from  the  acknowledgment  of  the  party. 

441.  Acknowledgment  must  admit  that  debt  is  still  due;   may  be  inferred  from 

facts  without  words. 

442.  Acknowledgment  must  be  such  as  raises  an  implication  of  a  promise  to  pay. 

443.  All  the  terms  of  the  acknowledgment  must  be  taken  together.     It  must  be 

inconsistent  with  an  intention  to  insist  on  the  statute. 

444.  Payment  of  a  part  of  the  debt  sufficient  acknowledgment  to  authorize  the 

presumption  of  a  promise  to  pay  the  remainder. 

445.  In  mutual  accounts,  items  on  both  sides  within  six  years  will  take  the  case  out 

of  the  statute. 

446.  If  cause  of  action  arises  ex  delicto,  no  acknowledgment  sufficient  to  take  case 

out  of  statute  of  limitations. 

447.  Construction  of  the  exception  in  statute  of  21  Jac.  1,  of  "such  accounts  afl 

concern  the  trade  of  merchandise  between  merchant  and  merchant,  their  fiio- 
tors  or  servants." 

448.  Fraud  in  defendant,  how  far  it  removes  the  bar  of  the  statute.] 

§  430.  The  statute  of  limitations  is  set  up  in  bar  either  of  rights 
of  entry,  or  of  rights  of  action.  In  the  former  case,  when  the  de- 
fendant claims  title  to  land  under  a  long  possession,  he  must  show 


384 


LAW   OF   EVIDENCE. 


[part  IV 


that  the  possession  was  open  and  visible,  notorious,  exdnsive,  and 
adverse  to  the  title  of  the  plaintiff.^  It  must  be  such,  that  the 
owner  may  be  presumed  to  know,  that  there  is  a  possession  adverse 
to  his  title  ;  ^  but  his  actual  knowledge  is  not  necessary,  it  being 
sufficient  if,  by  ordinary  observation,  he  might  have  known .^  It 
must  be  knowingly  and  designedly  taken  and  held  ;  an  occupan- 
cy by  accident  and  mistake,  such  as  through  ignorance  of  the  di- 
viding line,  or  the  like,  is  not  sufficient.*  And  it  must  be  with  ex- 
clusive claim  of  title  in  the  possessor  ;  and  not  in  submission  to 
the  title  of  the  true  owner .^ 

§  431.  Where  the  statute  of  limitations  is  set  up  in  bar  of  a  right 
■)f  action^  by  the  plea  of  actio  non  accrevit  infra  sex  annos,  which  is 
traversed,  the  burden  of  proof  is  on  the  plaintiff,  to  show  both  a 
cause  of  action,  and  the  suing  out  of  process  within  the  period 
mentioned  in  the  statute.^  By  suing  out  of  process,  in  these  cases, 
is  meant  any  resort  to  legal  means  for  obtaining  payment  of  the 
debt  from  the  defendant ;  such  as  filing  the  claim  in  set-off,  in  a 
former  action  between  the  same  parties,  which  was  discontinued  ;  '^ 


1  Taylor  v.  Horde,  1  Burr.  60  ;  Cowp. 
689  ;  Jerritt  v.  Weare,  3  Price,  R.  573  ; 
4  Kent,  Comm.  482  -  489  ;  Kennebec 
Prop'rs  V.  Springer,  4  Mass.  416;  Kenne- 
bec Prop'rs  V.  Laboree,  2  Greenl.  273  ; 
Little  V.  Libby,  Id.  242  ;  Little  v.  Meg- 
quicr,  Id.  176;  Norcross  v.  Widgery,  2 
Mass.  506.  [Wbere  a  religious  society, 
wliose  meeting-bouse  is  held  in  trust  by 
their  prudential  committee  for  maintaining 
a  particular  form  of  worship,  vote  to  adopt, 
and  to  adopt  openly,  another  form  of  wor- 
ship, it  seems  that  their  possession  becomes 
adverse,  and,  if  continued  for  a  sufficient 
length  of  time  will  bar  a  suit  in  equity  to 
cnlbrce  the  trust.  Attorney-General  v. 
Federal-Street  Meeting-house,  3  Gray,  1. 
Possession  for  forty  years,  by  a  religious 
society,  of  a  meeting-house  previously  con- 
veyed to  their  prudential  committee  in 
trust  for  the  support  of  Presbyterianism, 
will  bar  a  suit  in  equity  to  enforce  the 
trust.     lb.] 

2  Kennebec  Prop'rs  v.  Springer,  4  Mass. 
416  ;  Coburn  v.  Hollis,  3  Met.  125  ;  Bates 
V.  Norcross,  14  Pick.  224 ;  Prescott  v. 
Nevcrs,  4  Mason,  II.  326.  [*  If  an  owner 
of  land  has  been  disseised,  his  subsequent 
insanity  does  not  prevent  the  disseisor's  title 
from  maturing,  by  twenty  years'  adverse 
possession.  Allis  ;;.  Moore,  2  Allen, 
306]. 

8  Poignard  v.  Smith,  6  Pick.  172. 

*  Brown  v.  Gay,  3  Greenl    126  ;  Gates 


V.  Butler,  3  Humph.  R.  447 ;  Ross  v. 
Gould,  5  Greenl.  204. 

s  Small  V.  Proctor,  1 5  Mass.  495  ;  Little 
V.  Libby,  2  Greenl.  242  ;  Peters  v  Foss,  5 
Greenl.  182;  Teller  v.  Burtis,  6  Johns. 
197.  [*  The  doctrine  of  adverse  posses- 
sion is  to  be  taken  strictly.  Such  a  pos- 
session is  not  to  be  made  out  b}'  inference, 
but  by  clear  and  positive  proof.  Every 
presumption  is  in  favor  of  possession  in 
subordination  to  the  title  of  the  true  owner. 
Huntington  v.  Whalev,  29  Conn.  391. 
Hood  V.  Hood,  2  Grant's  Gas.  229.] 

«  Hurst  V.  Parker,  1  B.  &  Aid.  92  ;  2 
Chitty,  R.  249,  S.  C.;  Wilby  v.  Henman, 
7  Tyrw.  957  ;  2  Cr.  &  Mees.  658.  [Where 
the  last  day  ujjon  which  an  act  must  be 
done,  to  take  a  case  out  of  the  statute  of 
limitations,  fiills  on  Sunday,  the  act  should 
be  done  on  or  before  the  previous  Satur- 
day. By  Crompton,  J.,  Anonymous,  28 
Eng.  Law  &  Eq.  224.] 

■?  Hunt  V.  Spaulding,  18  Pick.  521. 
[Where  a  statute  provides  that  the  plain- 
tiff may  amend  his  writ  by  making  other 
parties  deiendant  by  due  service,  lic,  one 
who  is  thus  nuidc  defendant  may  plead 
the  statute  of  limitations  in  an  action  on  a 
joint  and  several  contract,  if  six  years  have 
elapsed  before  service  upon  him.  Wood- 
ward V.  Ware,  37  Maine,  563.  How  far  a 
party  to  a  joint  contract  so  summoned  in 
can  so  avail  himself  of  tlie  statute,  qucere. 
Ibid.] 


PART  IV.]  LIMITATIONS.  385 

or  filing  it  with  the  commissioners  on  an  insolvent  estate.^  And 
the  suit  is  commenced  by  the  first  or  incipient  step  taken  in  the 
course  of  legal  proceedings,  such  as  the  actual  filling  up  and  com- 
pleting the  writ,  or  original  summons,  without  showing  it  served  ;^ 
the  true  time  of  doing  which  may  be  shown  by  extrinsic  evidence, 
irrespective  of  the  date  of  the  process  ;  ^  though  the  date  of  the 
process  is  prima  facie  evidence  of  the  time  when  it  was  sued  out.* 
So,  the  true  time  of  filing  the  declaration  may  be  shown,  without 
regard  to  the  term  of  which  it  is  intituled.^  The  issuing  of  a  lati- 
tat is  the  true  commencement  of  a  suit  by  bill  of  Middlesex  ;  ^  and 
so  is  the  issuing  of  a  capias,  in  the  common  pleas.''  The  filing  of 
a  bill  in  chancery  is  also  a  good  commencement  of  an  action,  un- 
less the  bill  is  dismissed  on  the  ground  that  the  subject  is  cogniza- 
ble only  at  law.^ 

§  432.  If  writ  is  abated,  by  the  death  of  the  plaintiff,  or  by  her 
marriage,  if  a  feme  sole,  the  operation  of  the  statute  is  prevented 
by  the  commencement  of  a  7ieiv  suit,  by  the  proper  parties,  within 
a  reasotiable  time;  and  this,  where  it  is  not  otherwise  regulated 
by  statute,  is  ordinarily  understood  to  be  one  year,  this  period 
having  been  adopted  from  the  analogy  of  the  fourth  section  in  the 
statute  of  limitations  of  James  I.,  providing  for  the  cases  of  judg- 
ments reversed  or  arrested.^     But  this  rule  does  not  apply  to  an 

1  Guild  V.  Hale,  15  Mass.  455.  Snell  v.  Phillips,  Peake's  Cas.  209;  Rob 
-  Gardiner  v.  Webber,  17  Pick.  407;  inson  i'.  Burleigh,  5  N.  Hamp.  225. 
Williams  v.  Roberts,  1  Cr.  M.  &  R.  676  ;  ^  Johnson  v.  Smith,  2  Ruit.  950. 
5  Tyrw.  421  ;  Buvdick  v.  Green,  18  Johns.  '^  Leader  v.  Moxon,  2  W.  Bl.  925.  Where 
14  ;  Beekman  v.  Satterlee,  5  Cowcn,  519  ;  the  writ  and  declaration  disagree,  as  where 
Johnson  v.  Farwell,  7  Greenl.  370 ;  Par-  the  writ  is  in  trespass,  and  the  declaration 
kerr.  Colcord,  2  N.  Hamp.  R.  36  ;  Thomp-  is  in  assumpsit,  as  is  practised  in  the  courts 
son  V.  Bell,  6  Monroe,  R.  560.  But  see  of  king's  bench  and  common  pleas,  it  must 
Bonnet  v.  Ramsay,  3  Martin,  R.  776  ;  be  shown,  not  only  that  the  writ  was  sea- 
Jencks  v.  Phelps,  4  Conn.  149  ;  Perkins  v.  sonably  issued,  but  that  it  was  entered  and 
Perkins,  7  Conn.  558  ;  Day  v.  Lamb,  7  continued,  down  to  the  time  of  filing  the 
Verm.  426.  [The  words  in  the  statute  declaration  ;  for  otherwise  it  will  not  ap- 
were  by  "  an  action  duly  commenced,"  pear  that  the  writ  was  sued  out  for  the 
and  they  were  held  to  mean  an  action  on  a  present  cause  of  action.  But  in  the  United 
claim  "  actually  declared  upon  in  a  proper  States  this  is  seldom  necessary  ;  and  where 
writ  returnable  according  to  law."  Woods  the  course  of  proceeding  would  seem  to 
V.  Houghton,  1  Gray,  580.  A  suit  was  require  it,  the  continuances  are  mere  mat- 
commenced  within  the  time  prescribed  by  ters  of  form,  and  may  he  entered  at  any 
the  statute,  but  no  declaration  was  filed  time.  See  Angell  on  Limitations,  ch.  28  ; 
therein  until  seven  years  after,  and  it  was  Schlosser  i\  Lesher,  1  Dall.  311;  Beek- 
held  that  the  claim  was  not  barred  by  the  man  v.  Satterlee,  5  Cowen,  519;  Soulderi 
statute.  Hemphill  v.  McClimans,  24  Penn.  v.  Van  Rensselaer,  3  Wend.  472  ;  Davis  v. 
Slate  R.  367.]  West,  5  Wend.  63. 

=*  Bilton  V.  Long,  2  Keb.  198,  per  Kel-         ^  Gray  v.  Berryman,  4  Munf.  181.    See, 

yng,   C.  J. ;   Johnson  v.   Smith,  2  Burr,  further,  Angell  on  Limitations,  ch.  28- 
950,  959  ;  Young  v.  Kenyon,  2  Day,  252.  ^  Kinsey  v.  Heyward,  1  Ld.  Rayiu.  434, 

*  Bunker?;.  Shed,  8  Met.  150.  per  Treby,  C.  f.;  Forbes  y.  Ld.  Middle- 

5  Granger  v.  George,  5  B.  &  C.  149 ;  ton,  Willes,  259.  note   (c) ;  Matthews  v. 
VOL.  II.                                   25 


386  LAW   OF   EVIDENCE.  [PART  IV 

action  determined  by  voluntary  abandonment  by  the  plaintiff,  as 
in  case  of  a  nonsuit.^ 

§  433.  In  cases  of  tort,  and  in  actions  on  the  case,  sounding  in 
tort,  a  distinction  is  to  be  observed  between  acts  wrongful  in  them- 
selves, which  directly  affect  the  rights  of  the  plaintiff,  and  for 
which,  therefore,  an  action  may  be  instantly  maintained  without 
proof  of  actual  damages,  and  those  cases  where  the  injury  is  con- 
sequential, and  the  right  of  action  is  founded  on  the  special  dam- 
ages suffered  by  the  plaintiff.  In  the  former  class  of  cases,  the 
statute  period  begins  to  run  from  the  time  when  the  act  is  done, 
without  regard  to  any  actual  damages,  or  to  any  knowledge  by  the 
party  injured.  But  in  the  latter  cases,  it  runs  from  the  time 
when  the  special  damage  accrued.^  Thus,  in  slander,  where  the 
words  impute  an  indictable  offence,  the  time  runs  from  the  speak- 
ing of  them  ;  but  if  they  are  actionable  only  in  respect  of  the  spe- 
cial damage,  as  in  slander  of  title,  it  runs  from  the  time  when  this 
damage  was  sustained. ^  So  in  trover,  the  time  is  computed  from 
the  act  of  conversion  of  the  goods.'^  And  in  actions  for  official  or 
professional  negligence,  the  cause  of  action  is  founded  on  the  breach 
of  duty,  which  actually  injured  the  plaintiff,  and  not  on  the  conse- 
quential damage.  Thus,  in  an  action  against  an  attorney  for 
neglect  of  professional  duty,  it  has  been  held  that  the  statute  of 
limitations  begins  to  run  from  the  time  when  the  breach  of  duty 
was  committed,  and  not  from  the  time  when  the  consequential 
damage  accrued.^  So,  in  an  action  against  the  sheriff,  for  an  in- 
sufficient return  upon  a  writ,  by  reason  whereof  the  judgment  was 

Phillips,  2  Salk.  424,  425 ;  Angell  on  Lim-  field,  6  Cush.  417;  Bullock  v.  Dean,  12 

itations,  eh.  28;    Huntington   v.  Brinker-  Met.  15.     The  period  of  limitation  is  not 

hoff,  10  Wend.  278.     [2  Saund.  6.3  h,  note ;  prolonged  where  the  writ  is  abated  by  be- 

Fynch  v.  Lambe,  Cro.  Car.  294  ;  Coffin  v.  ing  brought  in  the  wrong  county.     Don 

Cottle,  16  Pick.  386  ;  Woods  i'.  Houghton,  nell  v.  Gatchell,38  Maine,  217.] 

1  Gray,  580  ;  Downing  v.  Lindsay,  2  Barr,  ^  [*  gee  Bank  of  Hartford  County   v. 

385;  Baker  v.  Baker,   13  B.  Mon.  406;  Waterman,  26  Conn.  324,  where  this  ques- 

Givens  v.  Robbins,  1 1  Ala.  158.  And  where  tion  is  carefully  considered.] 

the  statute  provides  for  the  commencement  ^  Law    v.   flarwood,    Cro.    Car.    140  ; 

of  a  new  action  within  one  year,  "  if  the  Saunders  v.  Edwards,  1  Sid.  95. 

writ  shall  be  abated  or  the  action  otherwise  *  Crompton  v.  Chandless,  4  Esp.  20,  per 

MaaXcili  for  any  matter  of  form,"  the  abate-  Ld.  Kenyon  ;  Granger  v.  George,   5   B.  & 

ment  or  dismissal  for  want  of  jurisdiction  C.  149  ;  Denys  v.  Shuckburg,  4  Y.  &  C.  42. 

of  a  trustee  process  brought  in  a  county  in  ^  Howell  v.  Young,  2  C.  &  P.  238  ;  5  B. 

which  neither  af  the  trustees  resides,  is  an  &   C.   259  ;  S.  C.  confirmed  in   Smith  v. 

abatement  or  dismissal  "for  a  matter  of  Fox,  12  Jur.  130;  Brown  v.  Howard,  4  J. 

form "  within  the  meaning  of  the  statute.  B.    Moore,  508  ;  2   B.    &   B.    73,  S.  C.  ; 

Woods  V.  Houghton,  1  Gray,  580.]  Short  v.  McCarthy,  3  B.  &  Aid.  626.     See 

1  Richards    v.    Maryland    Ins.    Co.    8  also  Leonard  v.  Pitney,  5  Wend.  30 ;  The 

Cranch,  84,  93  ;  Harris  v.  Dennis,  1   S.  &  Bank  of  Utica  v.  Childs,  5  Cowen,  238  ; 

R.   236.     But   see    Cretien   v.  Theard,    2  Staftbrd   v.   Richardson,    15    Wend.  302 

Martin,  R.  747.     See  also  Swan  v.  Little-  Argall  v.  Bryant,  1  Sandf.  98. 


PART  IV.]  LIMITATIONS.  387 

reversed,  the  statute  begins  to  run  from  the  time  of  the  return, 
and  not  from  the  reversal  of  the  judgment.^  But  in  an  action  for 
taking  insufficient  bail,  the  injury  did  not  arise  to  the  plaintiff, 
until  he  had  recovered  judgment,  and  the  principal  had  avoided, 
for  until  then  the  bail  might  have  surrendered  the  principal ;  and 
therefore  the  statute  begins  to  run  from  the  return  of  wow  est  inven- 
tus on  the  execution. 2 

§  434.  The  same  distinction  has  been  recognized,  in  expounding 
private  and  local  statutes,  which  have  limited  the  remedy  to  a  cer- 
tain period  of  time  from  the  act  done.^  Where  the  act  was  in  itself 
lawful,  so  far  as  the  rights  of  the  plaintiff  were  concerned,  but  oc- 
casioned a  subsequent  and  consequential  damage  to  him,  the  time 
has  been  computed  from  the  commencement  of  the  damage,  this 
being  the  act  done,  within  the  meaning  of  the  law.  But  where 
the  original  act  was  in  itself  a  direct  invasion  of  the  plaintiff's 
rights,  the  time  has  been  computed  from  such  original  act.  Thus, 
where  a  surveyor  of  highways,  in  the  execution  of  his  office,  un- 
dermined a  wall  adjoining  a  highway,  and  several  months  after- 
wards it  fell,  the  statute  period  limiting  the  remedy  was  computed 
from  the  falling  of  the  wall,  this  alone  being  the  specific  wrong  for 
which  an  action  was  maintainable.*  And  the  same  principle  has 
been  applied  to  similar  acts  done  by  commissioners  and  others, 
acting  under  statutes.^  On  the  other  hand,  where  the  action  is 
for  an  illegal  seizure  of  goods  under  the  revenue  laws,  though  they 
were  originally  stopped  for  examination  only,  and  afterwards  final- 
ly and  absolutely  detained,  the  time  is  computed  from  the  original 
act  of  stopping  the  goods,  and  not  from  the  commencement  of 
■  special  damages,  or  from  the  final  detention,  or  from  the  redelivery 
of  the  goods. 6  So,  where  a  trespass  was  committed  by  cutting 
down  trees,  which  the  defendant  afterwards  sold,  it  was  held  that 
the  statute  attached  at  the  time  of  cutting  the  trees,  and  not  at  the 
time  of  sale.7 

1  Miller  v.  Adams,  16  Mass.  456.  *  Eoberts  v.  Read,   16  East,    215 ;   6 

2  Rice  V.  Hosmer,  12  Mass.  127,  130;  Taunt.  40,  n.  (6)  ;  Wordsworth  v.  Harley, 
Mather  v.  Green,  17  Mass.  60.  1  B.  &  Ad.  391.                      ,^    p   t>    .., 

3  Whether  a  mere  nonfeasance  and  5  Gillon  y.  Boddington,  1  C.  &  l*.  541  ; 
omission  can  be  regarded  as  an  act  done,  so  Lloyd  v.  Wigney,  6  Bing.  489  ;  Sutton  v. 
as  to  be  within  the  protection  of  these  Clarke,  6  Taunt.  29.  But  see  Smith  t;. 
statutes,  has  been  much  doubted.  See  Shaw,  10  B.  &.  C.  277 ;  Heard  v.  The 
Bhilvemore  v.  Glamorganshire  Canal  Co.,  3  Middlesex  Canal,  5  Met.  81. 

Y.    &  J.   60 ;  Gaby   v.    Wilts.   &   Berks.  «  Gordon     v.     Ferris,    2    H.    Bl.    14 ; 

Canal  Co.,  3  M.  &  S.  580  ;  Umphelby  v.  Saunders  v.  Saunders,  2  East,  254 ;  Crook 

McLean,  1  B.  &  Aid.  42  ;  Smith  v.  Shaw,  v.  McTavish,  1  Bing.  167.              ,,   ,„, 

10  tt.  &  C.  277,  per  Bayley,  J.  ^  Hughes  r.  Thomas,  13  East,  474, 485 


388 


LAW   OF   EVIDENCE. 


[part  IV. 


§  435.  In  cases  of  contract,  the  general  principle  is,  that  the 
statute  attaches  as  soon  as  the  contract  is  broken  ;  because  the 
phintiff  may  then  commence  his  action.  And  though  special 
damage  has  resulted,  yet  the  limitation  is  computed  from  the  time 
of  the  breach,  and  not  from  the  time  when  the  special  damage 
arose  .1  If  money  is  lent,  and  a  bill  of  exchange  is  given  for  the 
payment  at  a  future  day,  the  latter  period  is  the  time  when  the 
limitation  commences.^  If  a  bill  is  payable  at  a  certain  time  after 
sight,^  or  a  note  is  payable  at  so  many  days  after  demand,*  the 
statute  attaches  only  upon  the  expiration  of  the  time  after  present- 
ment or  demand.  But  where  the  right  of  action  accrues  after 
the  death  of  the  party  entitled,  the  period  of  limitation  does  not 
commence  until  the  grant  of  administration  ;  for,  until  then, 
there  is  no  person  capable  of  suing.^  Where  the  action  is  against 
a  factor,  for  not  accounting  and  paying  over,  the  statute  begins  to 
run  from  the  time  of  demand  ;  for  until  demand  made,  no  action 
accrued  against  him.^  And  where  a  contract  of  service  is  entire, 
as  for  a  year,  or  for  a  voyage,  the  limitation  does  not  commence 
until  the  whole  term  of  service  is  expired." 


1  Batterv  v.  Faulkner,  3  B.  &  Ad.  290 ; 
Short  V.  McCarthy,  Id.  626.  If  the  ri}j;ht 
of  action  was  in  a  trustee,  it  is  barred  by 
his  ncf;;lcct  to  sue,  though  the  cestui  que  trust 
was  under  disability.  Wyche  v.  E.  Ind. 
Co.,  3  P.  Wms.  309.  [A  contracted  to 
sell  B  certain  salt,  and,  it  having  been  de- 
stroyed, in  November,  1831,  B  demanded 
its  delivery,  and  was  refused.  Negotia- 
tions took"  place  as  to  whether  B  was  en- 
titled to  compensation,  and  they  were  con- 
tinned  until  1838,  when  A  finally  refused 
compensation,  and  soon  B  brought  his  ac- 
tion, and  it  was  held  barred  by  the  statute. 
East  India  Co.  v.  Paul,  1  Eng.  Law&Eq.44. 
And  where  a  person  agrees  to  a  settlement 
under  a  mistake,  which  he  had  the  means 
of  ascertaining  at  the  time,  and  neglects 
to  ascertain  it  and  have  it  corrected  more 
than  six  years,  and  then  brings  an  action, 
it  will  be"  barred  by  the  statute.  Steele  v. 
Steele,  25  Penn.  State  R.  (l  Casey)  154.] 
2  Wittersheim  v.  Countess  of  Carlisle, 
1  H.  Bl.  631. 
8  Holmes  v.  Kerrison,  2  Taunt.  323. 
*  Tlun-pe  V.  Booth,  Ry.  &  M.  388; 
Thorjjc  V.  Combe,  8  I).  &  R.  347  ;  Anon. 
I  Mod.  89.  [Where  bills  of  exchange  are 
made  j)ayab]e  at  a  particular  place,  no  ac- 
tion can  be  maintained  until  after  a  demand 
at  that  place,  and  a  dishonor  there.  There- 
fore the  statute  of  limitations  begins  to 
run  from  the  time  of  such  iemand,   and 


not  from  the  time  when  the  bills  were  pay- 
able according  to  their  tenor.  Picquct  v. 
Curtis,  1  Sumner,  478.  A  promise  in 
writing,  attested  by  a  witness,  to  pay  a 
note  "  at  any  time  within  six  years  from 
this  date,"  is  a  promise  to  pay  on  demand, 
and  the  statute  of  limitations  begins  to  run 
against  a  claim  founded  on  such  written 
promise,  from  the  date.  Young  v.  Weston, 
39  Maine,  492.]  [*  Colgate  v.  Bucking- 
ham, 39  Barb.  177.] 

6  Murray  v.  E.  I.  Co.,  5  B.  &  Aid.  204. 
And  see  Cary  v.  Stephenson,  1  Salk.  421  ;  ' 
Pratt  V.  Swame,  8  B.  &  C.  28.5.  In  some 
of  the  United  States  cases  of  this  kind  are 
specially  provided  for  by  statutes,  extend- 
ing the  period  of  limitation  for  a  further 
definite  time. 

^  Topham  v.  Braddick,  1  Taunt.  572. 
And  see  Pecke  v  Amblm-,  W.  Jones,  329. 

7  Ewer  V.  Jones,  6  Mod.  26  ;  [Jones  v. 
Lewis,  1 1  Texas,  359  ;  Walker  v.  Good- 
rich, 16  111.  341.  [*  The  statute  does  not 
begin  to  run  against  any  part  of  the  claim 
of  an  attorney  at  law  for  services  rendered 
and  money  paid  in  conducting  a  suit  to  its 
termination,  under  a  general  employment, 
until  the  final  entry  of  judgment  therein. 
Eliot  V.  Lawton,  7  Allen,  274.] 

Where  the  surety  on  a  promissory  note 
paid  the  holder  before  the  note  was  pay 
able  by  its  terms,  the  cause  of  actiot 
against   the   principal  for   indemnity  was 


PAKT  IV.] 


LIMITATIONS. 


589 


§  436.  The  bar  of  the  statute  of  limitations  may  be  avoided  by 
showing,  (1.)  that  the  plaintiff  was  under  any  disahllity  mentioned 
in  the  statute  ;  or,  (2.)  that  the  claim  has  been  recognized  by  the 
defendant  as  valid,  by  an  acknowledgment,  or  a  new  promise,  within 
the  statute  period  ;  or,  (3.)  tliat  the  cause  of  action  was  fraudu- 
lently concealed  by  the  defendant,  until  within  that  period. 

§  437.  (1.)  The  disabilities  oiinfancy,  coverture,  and  insanity  will 
he  found  treated  under  their  appropriate  heads.  The  disability 
arising  from  absence  out  of  the  country  is  usually  expressed 
by  being  beyond  sea;  but  the  principle  on  which  this  exception  is 
founded  is,  that  no  presumption  can  arise  against  a  party  for  not 
suing  in  a  foreign  country,  nor  until  there  is  somebody  within  the 
jurisdiction  whom  he  can  sue  ;  ^  and  therefore  the  words  "  beyond 
sea,"  in  the  statute  of  any  State,  are  expounded  as  equivalent  to 
being  "  out  of  the  State,"  and  receive  the  same  construction.^  And 
the  latter  form  of  words  is  held  equivalent  to  being  "  out  of  the 
actual  jurisdiction  "  ;  that  is,  beyond  the  reach  of  process  ;  so  that 
where  a  part  of  the  territory  of  a  State,  in  time  of  war,  is  actually 


held  to  .accrue  when  the  note  became  due, 
according  to  its  tenor,  and  not  before. 
Tillotson  V.  Rose,  1 1  Met.  299.  So,  where 
a  subsequent  indorser  pays  a  note,  the 
statute  as  ajjainst  a  prior  indorser  begins 
to  run  on  the  payment  of  the  money. 
Barker  y  Cassidy,  16  Barb.  177  ;  Scott  v. 
Nichols,  27  Mis's.  94.  Where  there  is  a 
contract  to  save  harmless  from  certain  pay- 
ments, the  statute  runs  from  the  time  of 
the  payment,  and  not  of  the  execution  of 
the  contract.  Hall  v.  Thayer,  12  Met. 
130. 

The  cause  of  action  against  an  officer 
for  the  taking  of  insufficient  bail  by  his 
deputy,  accrues  on  the  return  of  non  est  in- 
i:entiis  upon  the  execution  against  the  prin- 
cipal, and  the  statute  runs  from  that  time. 
West  V.  Rice,  9  Met.  .564.  The  cause  of 
action  against  an  officer  for  not  paying 
money  collected  by  him  on  execution  does 
not  accrue  until  demand  is  made  on  him 
for  payment,  and  the  statute  begins  to  run 
from  the  time  of  the  demand.  Weston  i\ 
Ames,  10  Met.  244.  It  is  the  same  with 
an  agent.  Merle  v.  Andrews,  4  Texas, 
200.  Where  a  bill  of  exchange  was 
given  in  blank,  in  1840,  and  was  not  filled 
up  until  18.'J2,  and  a  jury  found  that  it  was 
not  filled  up  within  a  reasonable  time,  it 
was  held,  that  the  statute  ran  from  the 
time  the  bill  became  due  as  filled  up,  and 
not  from  the  time  when  it  would  have  be- 
come due  if  completed   when  it  was  ac- 


cepted in  blank.  Montague  v.  Perkins,  22 
Eng.  Law  &  Eq.  516.  A  bond  was  con- 
ditioned to  pay  an  outstanding  mortgage, 
on  land  bought  by  the  mortgagee,  and  it  was 
held,  that  a  right  of  action  would  accrue 
within  a  reasonable  time  after  the  mortgagee 
would  be  obliged  to  receive  payment,  and 
the  statute  would  commence  running  from 
that  time.  Gennings  v.  Norton,  .3.5  Maine, 
308.]  [*  Under  the  New  Hampshire  stat- 
ute, when  a  note  has  been  secured  by  a 
mortgage  under  seal,  whether  of  real  or 
personal  estate,  if  such  note  has  not  been 
paid,  or  the  mortgage  given  to  secure  it 
discharged,  an  action  upon  the  note  will 
not  be  barred  by  the  statute  until  such 
statute  would  operate  as  a  bar  to  a  suit 
upon  such  mortgage.  Alexanders.  Whip- 
ple, 45  N.  H.  R.] 

1  Per  Best,  C.  J.,  in  Douglas  v.  Forrest, 
4  Bing.  686. 

^  Faw  V.  Roberdeau,  3  Cranch,  177,  per 
Marshall,  C.  J. ;  Murray  v.  Baker,  2 
Wheat.  541  ;  Angell  on  Limitations,  ch.  9. 
In  some  of  the  United  States,  the  disabili- 
ty of  the  plaintiff'  is  limited,  by  statute,  to 
his  absence  from  the  United  States ;  and 
tbat  of  the  defendant  to  his  absence  from 
tlie  particular  State  in  which  he  resided. 
[Keeton  v.  Keeton,  20  Mis.  (5  Bennett) 
530;  Thomasum  v.  Odum,  23  Ala.  480; 
Ruckmaboye  v.  Mottichund,  32  Eng.  Law 
&  Eq.  84.] 


^90  LAW   OF  EVIDENCE.  [PARf  IV. 

and  exclusively  occupied  by  the  enemy,  a  person  within  the  ene- 
my's lines  is  out  of  the  State  within  the  meaning  of  the  statute  of 
limitations.!  The  rule,  as  applied  to  a  defendant,  has  therefore 
been  limited  to  the  case  where  he  was  personally  absent  from  the 
State,  having  no  attachable  property  within  it.^-  A  foreigner,  resi- 
dent abroad,  is  not  within  the  operation  of  the  statute,  even  though 
he  has  an  agent  resident  in  the  country .^ 

§  438.  In  the  case  oi partners,  the  absence  of  one  from  the  coun- 
try does  not  prevent  the  statute  from  attaching,  for  the  others 
might  have  sued  for  all.*  Nor  does  the  disability  of  one  coparce- 
ner, or  tenant  in  co7nmon,  preserve  the  title  of  the  other ;  for  each 
may  sue  for  his  part.^  But  in  the  case  of  joint  tenants,  and  joint 
.  contractors,  it  is  otherwise.^ 

§  439.  When  the  time  mentioned  in  the  statute  has  once  begun 
to  run,  it  is  a  settled  rule  of  construction,  that  no  disability  sub- 
sequently arising  will  arrest  its  progress.^  If,  therefore,  the  party 
be  out  of  the  jurisdiction  when  the  cause  of  action  accrues,  and  af- 
terwards returns  within  it,  the  statute  attaches  upon  his  return. 
But  in  the  case  of  a  defendant,  his  return  must  be  open,  and  such 
as  would  enable  the  plaintiff,  by  using  reasonable  diligence,  to 
serve  process  upon  him.  If  it  was  only  temporary  and  transient, 
in  a  remote  part  of  the  State,  so  that  it  could  not  have  been  sea- 
sonably known  to  the  plaintiff,  or  if  the  defendant  concealed  him- 
self, except  on  Sundays,  so  that  he  could  not  be  arrested,  it  is  not 

1  Sleght   V.  Kane,   1   Johns.   Cas.   76,  turn  of  the  party  to  any  one  of  the  States. 

^';  ^^,  .  Varney  v.  Grows,  37  Maine,  306.] 

^  White  V.  Bailey,  2  Mass.  371  ;  Little         *  Perry  v.  Jackson,  4  T.  R.  .516,  519: 

V.  Blunt,  16  Pick.  359.  Pendleton  v.  Phelps,  4  Dav,  476. 
^  btrithorst  V.  Graeme,  2  W.  Bl.  723 ;  3         &  Roe  v.  Rowlston,  2  Taunt.  441  ;  Doo- 

Wils.  145,  S.  C.  ;  Wilson  v.  Appleton,  17  little  v.  Blakeslev,  4  Day,  265. 
Mass.  180.     If  a  plaintiff  be  beyond   sea         6  Marsteller  »"McClean,  7  Cranch,  156; 

at  the  tune  of  the  action  accruing,  he  may  Fannin  v.  Anderson,  9  Jur.  969;   14  Law 

sue  at  any  time  before  his  return,  as  well  Jour.  282,  N.  S. ;   [Sturges  v.  Lono-worth 

as  within  the  time  limited  by  statute  for  1   Ohio   State  R.   544.     And  there  is  no 

the  commencement  of  a  suit  after  his  re-  right  of  contribution  between  defendants 

q"c"\t    -        "^  "'  ^'^'"'^^'^y-  5  Ad.  &  El.  who  have  protected  themselves  against  a 

836,  N.  S.     And  see  Townsend  v.  Deacon,  demand  by  setting  up  the  statute,  and  oth- 

13   Jur.  366.     [See   also   Von  Hemcrt  v.  er  defendants  who  might  equally  have  set 

Porter,  11  Met.  210;  Lafonde  u.  Ruddock,  up  the  statute,  but  who,  having  neglected 

24  Eng.  Law  &  Eq.  239  ;  Townes  v.  Mead,  to  do  so,  are  found  bv  tlie  decree  to  l)e  lia-    '' 

29  lb.  271.     A  party  who  is  absent  from  ble  to  the  plaintiffs.  "  Fordham  v.  Waliis, 

the  State,  but  has  a  home  therein  to  which  17  Eng.  Law  &  Eq.  182.] 
he  intends  to  return,  does  not  so  "reside         ^  Doe  v.  Jones,  4  T.  R.  300,  310;  An- 

witlioiit  the  State"   as    to   interrupt   the  gell  on  Limitations,  pp.146,  147;  Smith 

time  limited  for  the  commencement  of  an  v.    Hill,    1    Wills,    134.     In  some  of  the 

action.     Drew   v.  Drew,  37   Maine,  389  ;  United  States,  the  rule  is  differently  estab- 

B  nek  man  w.  Thompson,  38  lb.  171.     The  lished,   by   statutes.     See    Rev.    Stat,    of 

disability  to  sue  arising  from  being  without  Massachusetts,   ch.    120,   §   9  ;  Rev.    Stat, 

the   United  States  is  removed  by  the  re-  Mauie,  ch.  15*^,  §  28. 


PART  IV.]  LIMITATIONS.  391 

such  a  return  as  to  bring  the  case  within  the  operation  of  the  stat- 
ute.i 

§  440.  (2.)  Where  the  statute  is  pleaded  in  bar,  and  the  plain- 
tiff would  avoid  the  bar  by  proof  of  an  acknowledgment  of  the 
claim,  this  can  be  done  only  under  a  special  replication  of  a  new 
promise,  within  the  period  limited. ^  It  is  to  be  observed,  that  the 
statute  of  limitations  is  regarded  by  the  courts  as  a  wise  and  bene- 
ficial law,  not  designed  merely  to  raise  a  presumption  of  payment 
of  a  just  debt,  from  lapse  of  time,  but  to  afford  security  against 
stale  demands,  after  the  true  state  of  the  transaction  may  have 
been  forgotten,  or  be  incapable  of  explanation,  by  reason  of  the 
death  or  removal  of  witnesses.^  "Wherever,  therefore,  the  bar  of 
the  statute  is  sought  to  be  removed  by  proof  of  a  new  promise,  the 
promise,  as  a  new  cause  of  action,  ought  to  be  proved  in  a  clear 
and  explicit  manner,  and  be  in  its  terms  unequivocal  and  determi- 
nate.* In  the  absence  of  any  express  statute  to  the  contrary,  par- 
ol evidence  of  a  new  promise  would  be  sufficient ;  but  in  England, 
and  in  several  of  the  United  States,  no  acknowledgment  or  prom- 
ise is  now  sufficient  to  take  any  case  out  of  the  operation  of  this 
statute,  unless  such  acknowledgment  or  promise  is  made  or  con- 
tained by  or  in  some  writing,  signed  by  the  party  chargeable  there- 
by.^    It  is  not   necessary,  however,  that   the  promise  should  be 

1  Fowler  v.  Hunt,  10  Johns.  464,  467;  legal  effect  of  acknowledging  a  debt,  baired 

White  V.  Bailey,  3  Mass.  271,  273  ;  Byrne  by  tlie  statute,  is  that  of  a  promise  to  pay 

V.  Crowninsliidd,   1   Pick.  263 ;    Little  ;;.  the  old  debt ;  which  promise  the  law  im- 

Blunt,  16  Pick.  359 ;  Haggles  y.  Keeler,  3  plies  from  the  acknowledgment,   and  for 

Johns.   264  ;  Crosby  v.  Wyatt,  10  Shepl.  which  the  old  debt  is  a  consideration  in 

156.  law.     But  if  the  promise  is  limited  to  pay- 

-  In  those  States  where  general  pleading  ment  at  a  particular  time,  or  in  a  certain 

is  allowed  in  all  cases,  any  evidence  show-  manner,  or  out  of  a   specified  fund,  the 

ing  that  the  debt  is  or  is  not  subject  to  the  creditor  can  claim  nothing  more  th;m  the 

op'eration   of  the  statute  is  of  course  ad-  new  promise  gives  him;  for  the  old  debt 

uiissible  under  such  pleading.     See  Car-  is  revived  only  so  far  as  to  form  a  consid- 

shore  v.  Huyck,  6   Barb.  S.  C.  R.  583 ;  eration  for  the  new  promise.     Phillips  v. 

Henry  v.  Peters,  5  Geo.  311;  Trymer  v.  Phillips,  3  Hare,   299.     If,  therefore,  the 

Pollard,  5  Grat.  460  ;  [Frohock  v.  Pattee,  new  promise  was  not  made  until  after  ac- 

38  Maine,  103  ;  Theobald  v.  Stinson,  lb.  tion  brought,  it  cannot  prevent  the  opera- 

149;    Esselstvn  v.   Weeks,  2  Kernan  (N.  tion  of  the  statute.     Bateman  y.  Pinder,  3 

Y.)  635  ;  Penfield  v.  Jacobs,  21  Barb.  335  ;  Ad.  &  El.  574,  N.  S. 

Bloodgood    V.  Bruen,  4  Selden    (N.   Y.)  *  Bell  v.  Morrison,  1  Peters,  S.  C.  Rep. 

362.]     [*An  agreement  by  a  maker  of  a  362;  Cambridge  v.  Hobart,  10  Pick.  232; 

promissory  note  that  he  will  not  take  ad-  Gardiner  v.  Tudor,  8  Pick.  206 ;  Bangs  v. 

vantage  of  the  statute  of  limitations  may  Hall,  2  Pick.  368.     [A  new  promise,  made 

be  shown  in  evidence,  under  a  traverse  of  either  before  or  after  the  statute  of  limita- 

theplea  setting  up  the  statute  bar.     Stearns  tions  has  commenced  to  run,  Avill  avoid  it. 

V.  Stearns,  32  Vt.  678.]  Carlton  v.  Ludlow  Woollen  Mill,  1  Wil- 

3  Bell  V.  Morrison,  1  Peters,  S.  C.  Rep.  Hams  (Vt.)  496.] 

360,    per    Storv,     J.;    Mountstephen    v.  &  9  Geo.  4,  ch.  14  ;  Rev.  Stat.  J/assarAu- 

Brooke,  .3  B.  &  Aid.  141,  per  Abh^tt,  C.  setts,  ch.  120,  §  13  ;  Rev.  Stat.  Maine,  cL 

J  ;  Tanner  v.  Smart,  6  B.  &  C.  60L      The  146,  §  19  :  Ringgold  v.  Dunn,  3  Eiig.  497 


392 


LAW   OF  EVIDENCE. 


[part  IV. 


express ;  it  may  be  raised  by  implication  of  law,  from  the  acknowl- 
edgment of  the  party.^  But  such  acknowledgment  ought  to  con- 
tain an  unqualified  and  direct  admission  of  a  present  subsisting 
debt,  which  the  party  is  liable  and  willing  to  pay.  If  there  be  ac- 
companying circumstances,  which  repel  the  presumption  of  a  prom- 
ise or  intention  to  pay  ;  or,  if  the  expressions  be  equivocal,  vague, 
and  indeterminate,  leading  to  no  certain  conclusion,  but  at  best  to 
probable  inferences,  which  may  affect  different  mind§  in  different 
ways  ;  it  has  been  held  that  they  ought  not  to  go  to  a  jury,  as  evi- 
dence of  a  new  promise,  to  revive  the  cause  of  action.^  If  the  new 
promise  was  coupled  with  any  condition,  the  plaintiff  must  show 
that  the  condition  has  been  performed,  or  performance  duly  ten- 
dered.^  And  if  it  were  a  promise  to  pay  when  he  is  able,  the 
plaintiff  must  show  that  he  is  able  to  pay.* 


[An  oral  admission  by  the  defendant  that 
he  made  a  payment  on  the  demand  in  suit 
within  six  years  before  the  suit  was  com- 
menced if  competent  evidence  to  take  the 
case  out  of  the  statute.  Williams  v.  Grid- 
ley,  9  Met.  482.  See  also  Cleave  v.  Jones, 
4  Eng.  Law  &  Eq.  514,  overruling  Willis 
V.  Newham,  3  Y.  &  J.  518  ;  Sibley  v.  Lam- 
bert, 30  Maine,  353.] 

1  Angell  on  Limitations,  ch.  20.  [A 
mortgage  deed  duly  executed,  acknowl- 
edged, and  recorded,  but  not  delivered, 
found  among  the  papers  of  the  mortgagor 
after  his  death,  to  secure  the  payment  to 
the  mortgagee  of  a  demand  barred  by  the 
statute  of  limitations,  is  not  sufficient  to 
prevent  the  operation  of  the  statute.  Mer- 
riam  i'.  I^eonard,  6  Cush.  161.  If  the  ma- 
ker of  a  note  agrees  with  the  holder  to  pay 
liim  a  certain  proportion  of  the  amount 
due,  in  full  discharge  of  the  note,  and  af- 
terwards makes  and  signs  a  note  for  the 
amount  so  promised,  and  offers  it  to  the 
holder,  in  payment  of  the  first  note,  and 
the  holder  refuses  to  receive  it,  this  is  not 
such  an  acknowledgment  or  new  prom- 
ise as  will  take  the  first  note  out  of  the 
statute.  Smith  v.  Eastman,  3  Cush.  355. 
Sec  also  Waterman  v  Burbank,  8  Met. 
352.  An  acknowledgment  of  indebtedness 
in  an  answer  in  equity  is  sufficient  to  take 
the  case  out  of  the  stat\itc.  Brigham  v. 
Hutchins,  1  Williams  (Vt.)  .509.] 

■■^  Bell  V.  Morrison,  1  Peters,  S.  C.  Bep. 
3C2-.'5C5  ;  Bell  v.  Rowland,  Hardin,  301  ; 
Angell  on  Limitations,  ch.  21  ;  Bangs  v. 
Hall,  2  Pick.  368 ;  Stanton  v.  Stanton,  2 
N.  Hamp.  426 ;  Ventris  v.  Shaw,  14  N. 
Hamp.  422  ;  Jones  v.  Moore,  5  Binn.  573 ; 
Perlev  V.  Little,  3  Greenl.  97 ;  Porter  v. 
Hill,  4  Greenl.  41 ;  Deshon  v.  Eaton,  Id. 


413;  Miles  v.  Moodie,  3  S.  &  E.  211; 
Eckert  v.  Wilson,  12  S.  &  R  397;  Purdy 
V.  Austin,  3  Wend.  187  ;  Sumner  v.  Sum- 
ner, 1  Met.  394  ;  Allcock  v.  Ewen,  2  Hill, 
S.  Car.  Rep.  326  ;  Humphreys  v.  Jones, 
14  M.  &  W.  1  ;  9  Jur.  .333;  Bobbins  v. 
Farley,  2  Strobh.  348 ;  Christy  v.  Elem- 
mington,  10  Barr,  129  ;  Harman  v.  Clair- 
borne,  1  La.  Ann.  R.  342  ;  [Gibson  v. 
Grosvenor,  4  Gray,  606  ;  Mumford  v.  Free- 
man, 8  Met.  432 ;  Tucker  v  Haughton, 
9  Cush.  350  ;  Brown  v.  Edes,  37  Maine, 
318  ;  Douglas  v.  Elkins,  8  Foster  (N.  H.), 
26;  Phelps  v.  Williamson,  26  Vt.  230; 
Hayden  v.  Johnson,  lb.  768  ;  Buckiiigiiam 
V.  Smith,  23  Conn.  453 ;  Bloodgood  v. 
Bruen,  4  Selden  (N.  Y.)  362;  Shitler  v. 
Bremer,  23  Penn.  State  R.  413  ;  Beck  v. 
Beck,  25  Penn.  State  R.  124  ;  Collinson  v. 
Margesson,  3  H.  &  N.  954. j  [*In  case  ot 
the  presumption  of  payment  of  a  mortgage 
from  the  lapse  of  twenty  years,  mere  si- 
lent acquiescence  in  the  plaintiff's  demand 
is  not  sufficient  to  repel  the  presumption. 
Some  positive  act  of  unequivocal  recogni- 
tion, like  part  payment  or  a  written  admis- 
sion, or  at  least  a  clear  and  well  identified 
verbal  promise  or  admission  made  within 
twenty  years,  is  required.  Cheever  v.  Per- 
ley,  11  Allen,  587.] 

3  Wetzell  V.  Bussard,  11  Wheat.  309; 
[Kampshall  v.  Goodman,  6  McLean,  189.] 

*  Davies  v.  Smith,  4  Esp.  36  ;  Tanner 
V.  Smart,  6  B.  &  C.  603;  Scales  r.  Jacob, 
3  Bing.  538  ;  Ayton  v.  Bolt,  4  Bing.  105  ; 
Haydon  v.  Williams,  7  Bing.  1 6.5 :  Ed- 
munds V.  Downes,  2  C.  &  M.  459 ;  Rob- 
bins  V.  Otis,  1  Pick., 368,  3  Pick.  4  ;  Gould 
V.  Shirley,  2  M.  &  P.  581.  The  statute 
will  in  such  case  begin  to  run  from  the 
time  when  the  debtor  became  able  to  pay, 


PART  IV.] 


LIMITATIONS. 


393 


§  441.  Upon  this  general  doctrine,  which,  after  much  conflict 
of  opinion,  is  now  well  established,  it  has  been  held,  that  the  ac- 
knowledgment must  not  only  go  to  the  original  justice  of  the  claim, 
but  it  must  admit  that  it  is  still  due}  No  set  form  of  words  is  req 
uisite ;  it  may  be  inferred  even  from  facts,  without  words.^  It  is 
sufficient  if  made  to  a  stranger,^  or,  in  the  case  of  a  negotiable  se- 
curity, if  made  to  a  prior  holder ;  *  or,  in  any  case,  if  made  while 
the  action  is  pending.^  If  it  is  made  by  the  principal  debtor,  it 
binds  the  surety  ; «  or  if  by  the  guardian  of  a  spendthrift,  it  binds 
the  ward ; "'  and  if  by  one  of  several  joint  debtors,  it  binds  them 
all.8  And  where  the  plaintiff  proves  a  general  acdnowledgment 
of  indebtment,  the  burden  of  proof  is  on  the  defendant  to  show 
that  it  related  to  a  different  demand  from  the  one  in  controversy .^ 
Nor  is  it  necessary,  unless  so  required  by  express  statute,  that  the 
acknowledgment  should  be  in  writing,  even  though  the  original 
contract  is  one  which  was  required  to  be  in  writing  by  the  statute 
of  frauds  ;  for  it  was  the  original  contract  in  writing  which  fixed 
the  defendant's  liability,  and  the  verbal  acknowledgment  within 
six  years* only  went  to  show  that  this  liability  had  not  been  dis- 
charged.^'* 


•without  respect  to  the  creditor's  knowledge 
of  that  fact.  Waters  v.  Thanet,  2  Ad.  & 
El.  757,  N.  S.  [*  Hammond  v.  Smith,  10 
Jur.  N.  S.  117.] 

1  Clementsoni;.  "Williams,  8  Cranch.  72. 
[*  An  agreement  by  the  maker  of  a  promis- 
sory note,  before  the  statute  of  limitations 
has  run  upon  it,  "  that  he  will  not  take  any 
advantage  of  the  statute  of  limitations  on 
the  note,"  is  an  acknowledgnumt  of  the 
debt  sutHcient  to  take  it  out  of  the  statute. 
Stearns  v.  Stearns,  .32  Vt.  682.  Burton  v. 
Stevens,  24  Vt.  131.] 

2  Whitney  v.  Bigelow,  4  Pick.  110; 
East  Ind.  Co.  t'.  Prince,  Rv.  &  M.  407. 

8  Ibid. ;  Halladay  v.  V^ard,  3  Campb. 
42 ;  Mountstephen  v.  Brooke,  3  B.  &  Aid. 
141  ;  Sluhy  v.  Champlin,  4  Johns.  461.  It 
seems  that,  in  England,  since  the  statute 
of  9  Geo.  4,  c.  15,  an  acknowledgment 
made  to  a  stranger  would  not  be  sufficient. 
Grenfell  v.  Girdlestone,  2  Y.  &  C.  622. 

*  Little  V.  Blunt,  9  Pick.  483. 

*  Yea  V.  Fouraker,  2  Biirr.  1099  ;  Dan- 
forth  V.  Culver,  11  Johns  146. 

6  Frve  V.  Barker,  4  Pick.  382. 

T  Manson  v.  Felton,  13  Pick.  206. 

8  See  ante.  Vol.  1,  §§  174,  176  ;  Patter- 
son V.  Patterson,  7  Wend.  441.  But 
where  one  party  was  a  feme  covert  at  the 
time  of  the  new  promise  by  the  other,  it 
was  held  not  sufficient  to  charge  her  and 


her  husband.  Pittam  v.  Foster,.!  B.  &  C. 
248.  The  question,  whether  an  acknowl- 
edgment bv  one  partner  is  sufficient  to 
avoid  the  statute  as  to  all,  was  raised  in 
Clark  V.  Alexander,  8  Jur.  496  ;  8  Scott, 
N.  R.  147.  But  see  Walton  v.  Robinson, 
5  Ired.  341  ;  Wheelock  v.  Doolittle,  3 
Washb.  440,  that  it  is,  even  after  dissolu- 
tion. Semb.  that  an  acknowledgment  by 
one  of  several  executors  is  not.  Scholey 
I'.  Walton,  12  M.  &  W.  510,  per  Parke,  B. 
[*  An  acknowledgment  by  one  of  two 
partners,  after  dis'solution,  will  avoid  the 
bar  of  the  statute,  if  the  plaintiff  had  had 
dealings  with  the  firm,  and  did  not  know 
of  the" dissolution.  Sage  v.  Ensign,  2  Al- 
len, 245 ;  Tappan  v.  Kimball,  10  Foster, 
136.] 

9  Whitney  v.  Bigelow,  4  Pick.  110; 
Frost  r.  Bengough,  1  Bing.  266 ;  Baillie 
V.  Ld.  Inchiquin,  1  Esp.  435.  But  see 
Sands  v.  Gelston,  15  Johns.  511  ;  Clarke 
V.  Dutchcr,  9  Cowen,  674. 

w  Gibbons  v.  McCasland,  1  B.  &  Au. 
690.  [In  Massachusetts  the  new  promise 
by  which  a  debt  is  taken  out  of  the  opera- 
tion of  the  statute  of  limitations  does  not 
create  a  new  and  substantive  cause  of  ac- 
tion, but  operates  only  as  a  waiver  of  a 
defence  which  the  law  had  furnished  to  an 
old  promise  and  the  removal  of  a  statute 
bar.     It  is  the  original  delH  which  consti- 


394 


LAW   OF   EVIDENCE.  [PART  IV, 


§  442.  It  lias  been  already  observed,  that  an  acknowledgment, 
in  order  to  remove  the  bar  of  the  statute,  must  be  such  as  raises  an 
implication  of  a  promise  to  pay.  It  must  be  a  distinct  admission 
of  present  indebtment.  If,  therefore,  the  party  at  the  time  of  the 
conversation,  or  in  the  writing,  should  state  that  he  had  a  receipt, 
or  other  written  discharge  of  the  claim,  which  he  would  or  could 
produce,  this  does  not  take  the  case  out  of  the  statute,  even  though 
he  should  fail  to  produce  the  discharge.^  So,  if  he  admits  that  the 
claim  has  been  previously  made,  but  denies  that  he  is  bound  to  pay 
it,  whether  because  of  its  want  of  legal  formality,  as,  for  example, 
a  stamp,2  or  of  its  want  of  consideration ,3  or  the  like.  If  tlie  lan- 
guage is  ambiguous,  it  is  for  the  jury  to  determine  whether  it 
amounts  to  an  explicit  acknowledgment  of  the  debt,  or  not.*  But 
if  it  is  in  writing,  and  is  clear,  either  as  an  acknowledgment,  or 
otherwise,  the  judge  will  be  justified  in  so  instructing  the  jury.^ 

§  443.  The  terms  of  the  acknowledgment,  moreover,  must  all  be 
taken  together,  so  that  it  may  be  seen,  whether,  upon  the  wliole, 
the  party  intended  distinctly  to  admit  a,  presetit  debt  or  duty.  If, 
in  affirming  that  the  debt,  once  due,  has  been  discharged,.he  claims 
it  to  have  been  discharged  by  a  writing,  to  which  ke  particularly  re- 
fers with  such  precision  as  to  exclude  every  other  mode,  and  the 
writing,  being  produced  or  proved,  does  not  in  law  afford  him  a  le- 
gal discharge,  his  acknowledgment  will  stand  unqualified,  and  will 
bind  liim.6     So,  if  the  defendant  challenges  the  plaintiff  to  produce 

tutes  the  ground  of  action  and  fornis  the  Law  Reporter,  269.     [*  A  request  by  the 

basis  of  a  judgment.     Ilslev  v.  Jewett,  3  indorser  of  a  promissory  note  before  it  was 

Met.  439;  Way  v.  Sperrv,"6  Cush.  241;  barred  hy  tlie  statute  of  limitations,  that 

Fosters.  Shaw,   2  Gray,  1.53;  so  in  New  the  indorsee  would  collect  it  soon  or  re- 

York;   Phihps   v.   Peters,  21  Barb.  351;  lease    him,   is   not    an    acknowledgment 

Winchell  v.  Bowman,  lb.  448.     But  see  from  which  a  new  promise  can  be  implied 

Kampshall  v.  Goodman,  6  McLean,  189,  so  as  to  repel  the  bar.     Vass  r.  Conrad, 

which  decides  that  the  action  must  be  on  7  Jones,  Law,  87.     Judgment  by  default 

the  new  promise.]  against  a  debtor  sued  as  trustee  or  gar- 

1  Brydges  v.  Plumptre,  9  D.  &  R.  746;  nishee  is  not  such  an  acknowledgment  of 
Birk  v'.  Guy,  4  Esp.  184.  the  debt  as  will  take  it  out  of  the  statute. 

2  A'Court  V.  Cross,  3  Bing.  329.  Goodwin  v.  Buzzell,  3.5  Vt.  .56.] 

3  Easterby  v.  Pullen,  3  Stark.  186;  De  ^  College  v.  Horn,  3  Bing.  119  ;  Brig 
la  Torre  v.  Barclay,  1  Stark.  7  ;  Miller  v.  stocke  o.  Smith,  1  C.  &  M,  483  ;  2  Tyrw. 
Lancaster,  4   Greenl.  159;  Sands  v.  Gel-  445. 

iton,  15  Johns.  511.  6  Partington  v.  Butcher,  6  Esp.  66. 
*  Lloyd  V.  Maund,  2  T.  R.  760;  East  This  is  doubtless  the  case  alluded  toby 
Ind.  Co*.  V.  Prince,  Ry.  &  M.  407.  In  the  Gihbs,  C.  J.,  in  Helliiigs  v.  Shaw,  1  J.  B. 
circuit  court  of  the  United  States,  it  has  Moore,  340,  344  ;  where  he  is  made  to  con- 
bccn  held,  that  the  sufficiency  of  the  evi-  fine  his  observation  to  the  case  cf^a  dis- 
dence  to  take  a  case  out  of  the*  statute,  is  a  charge  by  a  loritten  instrument.  ITis  re- 
question  of  law  for  the  court ;  and  that  marks,  as  reported  in  the  same  case,  in 
the  jury  are  only  to  determine  whether  the  7  Taunt.  612,  are  general,  and  applicable 
evidence  applies  to  the  debt  in  suit,  and  to  to  any  other  mode  of  discharge  ;  hut  to 
what  part  of  it.     Penaro  v.  Flournoy,   9  this   linUmited  extent  their  soundness  ia 


PART  IV.] 


LimXATIONS. 


39o 


a  particular  mode  of  proof  of  liis  liability,  such  as,  to  prove  the 
genuineness  of  the  signature,  or  the  like,  and  he  does  so,  the  im- 
plied acknowledgment  will  be  sufficient  to  take  the  case  out  of  the 
statu te.i  But  if  the  acknowledgment  is  accompanied  with  circum- 
stances or  declarations  showing  an  intention  to  insist  on  the  benefit 
of  the  statute,  it  is  now  held  that  no  promise  to  pay  can  be  implied.^ 
And  if  the  cause  of  action  arose  from  the  doing  or  omitting  to  do 
some  specific  act  at  a  particular  time,  an  acknowledgment,  within 
six  years,  that  the  contract  has  been  broken,  is  held  insufficient  to 
raise  the  presumption  of  a  new  promise  to  perform  the  duty.^ 

§  444.  Where  a  specific  sum  of  money  was  due,  as,  upon  a  prom- 
issory note,  the  payment  of  a  part  of  the  debt  is  also  held  at  com- 
mon law  to  be  a  sufficient  acknowledgment  that  the  whole  debt  is 
still  due,  to  authorize  the  presumption  of  a  promise  to  pay  the  re- 
mainder ;  though  it  seems  it  would  not  be  sufficient,  if  no  specific 
sum  was  due,  but  the  demand  was  only  for  a  quantum  meruit.^ 
But  it  is  the  payment  itself,  and  not  the  indorsement  of  it  on  the 
back  of  the  security,  that  has  this  effect ;  though  where  the  in- 
dorsement is  proved  to  have  been  actually  made  before  the  cause 


questioned  by  Bailey,  J.,  in  Beal  v.  Nind, 
4  B.  &  Aid.  568,  571.  And  see  Dean  v. 
Pitts,  10  Johns.  35.  [*See  Moore  v. 
Stevens,  33  Vt.  308,  reviewing  the  Ver- 
mont cases,  and  holding  that,  where  the 
defendant,  after  the  commencement  of  the 
action  and  aliout  the  time  of  trial,  admit- 
ted that  the  plaintiff's  account  was  just 
when  it  accrued,  but  claimed  that  he  had 
paid  it  to  one  E.,  and  that  E.  Avas  author- 
ized l)y  the  plaintiff  to  receive  such  pay- 
ment, "and  the  defendant  at  the  same  time 
promised  to  pay  the  account  to  the  plain- 
tiff'if  lie  did  not"  prove  that  he  had  paitl  it, 
and  the  auditor  reported  that  he  did  not 
find  that  E.  was  authorized  to  receive 
payment  of  the  account,  and  that  the  de- 
fendant failed  to  prove  that  he  liad  ever 
paid  it,  there  was  not  a  sufficient  acknowl- 
ed;,nncnt  to  bar  the  statute.] 

1  HellinifS  v.  Shaw,  7  Taunt.  612,  per 
Gibbs.  C.  J. ;  Seward  v.  Lord,  1  Greenl. 
163  ;  Bobbins  v.  Otis,  1  Pick.  370  ;  3  Pick. 
4.  [*  But  see  Moore  v.  Stevens,  33  Vt. 
310,  where  the  court  say  of  a  promise  by 
the  defendant  to  pay  plaintiff's  account,  if 
he  did  not  prove  that  he  had  paid  it, 
"  The  promise  —  he  insisting  at  the  time 
that  he  bad  paid  it  —  was  more  in  the  nature 
of  a  wager  on  the  result  of  the  suit  than  of 
such  a  conditional  undertaking  as  would 
become  absolute  and  tiinding  when  the 
condition  was  performed,  and  we  regard  it 


as  insufficient  to  prevent  the  operation  of 
the  statute."  See  Goodwin  v.  Buzzell  on 
same  subject,  35  Vt.  9.] 

2  Coltman  v.  Marsh,  3  Taunt.  380; 
Rowcroft  V.  Lomas,  4  M.  &  S.  457  ;  Bangs 
V.  Hall,  2  Pick.  368 ;  Knott  v.  Farren,  4 
D.  &  K.  179;  Danforth  v.  Culver,  1 1 
Johns.  146.  [*Sandford  v.  Clark,  29 
Conn.  457.] 

3  BoydcU  I'.  Dmmmond,  2  Campb.  157  ; 
Whitehead  v.  Howard,  2  B.  &  B.  372  ;  Wet-, 
zell  V.  Bussard,  11  Wheat.  309. 

*  Bum  V.  Bolton,  15  Law  Journ.  97,  N. 
S. ;  Zent  v.  Hart,  8  Barr,  337.  But  see 
Smith?;.  Westmoreland,  12  S.  &  M.  663. 
[Pavment  of  part  of  the  debt  would  seem 
not  "to  be  conclusive  in  all  cases  to  author- 
ize the  presumption  of  a  promise  to  pay 
the  remainder.  The  circumstances  that 
attend  such  payment  may  wholly  disprove 
a  promise  to  pay  any  more.  Wainnian  v. 
Kvnman,  1  Welsh.  H.  &  G.  118;  Mer- 
ri.am  v.  Bavley,  1  Cush.  77;  Bradfield  v. 
Supper,  7  E'ng'.  Law  &  Eq.  541,  and  note. 
An  orai  admission  by  the  defendant  that 
he  made  a  payment  of  the  demand  in 
suit  within  six  years  before  the  suit  was 
commenced  is  competent  evidence  to  take 
the  case  out  of  the  statute.  Gridley  v. 
Williams,  9  Met.  482  ;  Sibley  v.  Lambert, 
30  Maine,  353 ;  Cleave  v.  Jones,  4  Eng, 
Law  &  Eq.  R.  514,  overruling  Willis  v. 
Newham,  3  Y.  &  J.  518.] 


896 


LAW   OF  EVIDENCE. 


[part  IV. 


of  action  was  barred  by  the  statute,  and  consequently  against  the 
interest  of  the  party  making  it,  the  course  is,  to  admit  it  to  be  con- 
sidered by  the  jury  among  the  circumstances  showing  an  actual 
payment.!  And  if  such  payment  be  made  by  one  of  several  joint 
debtors,  who  is  not  otherwise  discharged  from  the  obligation,  it  is 
evidence  against  them  all.^  But  as  this  rule  is  founded  on  the 
community  of  interest  among  the  debtors,  and  the  presumption 
that  no  one  of  them  would  make  an  admission  against  his  own  in- 
terest, it  results,  that,  where  the  party  making  the  payment  is  no 
longer  responsible,  as,  for  example,  where  it  is  received  under  a 
dividend  in  bankruptcy,  it  raises  no  presumption  against  the  oth- 
ers.^ 

§  445.  The  existence  of  mutual  accounts  between  the  parties,  if 
there  are  items  on  both  sides  within  the  period  of  limitation,  is 
such  evidence  of  a  mutual  acknowledgment  of  indebtment  as  to 
take  the  case  out  of  the  operation  of  the  statute.*     And  if  the 


1  See  ante.  Vol.  1,  §§  121,  122;  Whit- 
ney V.  Bijjelow,  4  Pick.  110;  Hancock  v. 
Cook,  18  Pick.  30,  33  ;  Rose  v.  Bryant,  2 
Campb.  321  ;  Conklin  v.  Pearson,  1  Rich. 
391.  This  subject  is  now  regulated  by 
statutes,  in  England,  and  in  several  of  the 
United  States,  by  which  the  indorsement, 
if  made  by  the  creditor  or  in  his  behalf, 
without  the  concurrence  of  the  debtor,  is 
of  no  avail  to  take  the  case  out  of  the 
statute.  Stat.  9  Geo.  4,  ch.  14  ;  Rev.  Stat. 
Mas-<arhusetts,  ch.  120,  §  17;  Rev.  Stat. 
Maine,  ch.  146,  §  23.  [A  payment  was 
made  by  a  debtor  to  a  creditor  to  whom  he 
owed  several  distinct  debts  without  any 
direction  as  to  its  application,  and  the 
creditor  immediately  applied  it  to  one  of 
the  debts  which  was  barred  by  the  statute 
of  limitations,  and  it  was  held  that  this  did 
not  take  the  debt  out  of  the  statute.  Pond 
V.  Williams,  1  Gray,  630.  To  have  that 
effect,  it  must  be  made  by  the  defendant 
specifically  on  account  of  the  debt  thus 
barred.  Ibid.  ;  Tippets  v.  Heane,  1  C.  M, 
&  R.  252,  and  4  Tyrw.  772;  Mills  v. 
Fowkes,  .5  Ring.  N.  C.  45.5,  and  7  Scott's 
Rep.  444 ;  Burn  v.  Boulton,  2  C.  B.  485. 
An  indorsement  of  payment  on  a  promis- 
sory note  by  the  creditor  by  the  express 
assent  and  request  of  the  promissor,  is  suf- 
ficient proof  of  such  payment  to  prevent 
the  operation  of  the  statute  of  limitations. 
Sibley  v.  Phelps,  6  Gush.  172.  See  also 
Howe  V.  Saunders,  38  Maine,  350.  There 
was  an  unwitnessed  indorsement  of  a  par- 
tial payment  on  an  attested  note,  and  it 
was  hehl  that  an  action  could  be  brought 
on  said  note  at  any  time  within  twenty 


years  of  such  indorsement.  Lincoln  Acad- 
emy V.  Newhall,  38  Maine,  179.  A  pay- 
ment by  a  wife,  without  the  knowledge 
of  her  husband,  of  the  interest  on  a  note 
given  by  her  dam  sola,  will  not  avoid 
the  statute.  Neve  v.  Hollands,  12  Eng. 
Law  &  Eq.  R.  398.] 

2  See  ante,  §  441  ;  Vol.  1,  §  174  But 
the  effect  of  such  payment  is  now  restricted 
by  statutes,  in  some  of  the  United  States, 
and  in  P^ngland,  to  the  party  p.aying.  Stat. 
9  Geo.  4,  ch.  14  ;  Rev.  Stat.  Masmchusetts, 
ch.  120,  §§  14,  18  ;  Rev.  Stat.  Maine,  ch. 
146,  §§  20,  24.  [Peirce  v.  Tobey,  5  Met. 
168;  Balcom  v.  Richards,  6  Gush.  360; 
Tappan  v.  Kimball,  10  Foster,  136  ;  Win- 
chell  v.  Bowman,  21  Barb.  448 ;  but  the 
rule  is  otherwise  where  the  payment  is  on 
a  note  on  which  the  makers  are  jointly  and 
severally  liable.  Shoemaker  v.  Benedict, 
1  Kcrnan  (N.  Y.)  176.  See  Coleman  v. 
Fol)es,  22  Penn.  State  R.  156.] 

^  Brandram  v.  Wharton,  1  B.  &  Aid. 
463;  ante,  Vol.  1,  §  174,  n.  (3).  And 
see  Bibb  v.  Peyton,  11  S.  &  M.  275. 

*  Cogswell  V.  Dolliver,  2  Mass.  217; 
Bull.  K  P.  149  ;  Chamberlain  v.  Cuyler, 
9  Wend.  126;  Tucker  v.  Ives,  6  Cowen, 
193;  Fitch  v.  Hilleary,  1  Hill,  S.  Car. 
Rep.  292.  See  also.  Rev.  Stat.  Massachu- 
setts, ch.  120,  §  5.  A  similar  effect  has 
been  attributed  to  continuity  of  service  of 
a  domestic,  until  a  short  time  previous  to 
the  suit.  Viens  v.  Brickie,  1  Martin,  611. 
If  the  items  are  all  on  one  side,  those  with- 
in six  years  will  not  save  the  others  from 
the  operation  of  the  statute.  Hadlock  v. 
Losee,  1  Sandf.  220.     [The  Massachusetts 


PART  IV.] 


LIMITATIONS.  397 


defendant's  account  contains  an  item  within  that  period,  this  has 
been  held  sufficient  to  save  the  account  of  the  plaintiff ;  ^  but  if 
the  items  in  the  defendant's  account  are  all  of  an  earlier  date, 
though  some  of  those  in  the  plaintiff's  account  may  be  within  the 
statute  period,  the  statute  will  bar  all  the  claim,  except  the  last- 
mentioned  items.2  If  the  account  has  been  stated  between  the 
parties,  the  statute  period  commences  at  the  time  of  stating  it;^ 
but  a  mere  cessation  of  dealings,  or  any  act  of  the  creditor  alone, 
or  even  the  death  of  one  of  the  parties,  is  not,  in  effect,  a  state- 
ment of  the  account.* 

§  446.  It  may  here  be  further  observed,  that,  where  the  cause 
of  action  arises  ex  delicto,  as  in  trespass  and  trover ;  or  is  given  by 
positive  statute,  irrespective  of  any  promise  or  neglect  of  duty  by 
the  party,  as  in  the  case  of  actions  against  executors  and  adminis- 
trators upon  the  contracts  of  their  testators  or  intestates ;  if  the 
action  is  once  barred  by  lapse  of  time,  no  admission  or  acknowl- 
edgment, however  unequivocal  and  positive,  will  take  it  out  of 
the  operation  of  the  statute.^ 

§  447.  The  statute  of  limitations  of  21  Jac.  1,  c.  16,  which  has 
been  copied  nearly  verbatim,  in  its  principal  features,  in  most 

statute  provides  that  in  actions  brought  items  of  payments  and  receipts  by  two 
"  to  recover  the  bahince  due  u])on  a  mutu-  tenants  in  common  concerning  their  estate 
al  and  open  account  current,  the  cause  of  constitute  "  an  open  and  mutual  account 
action  sliall  be  deemed  to  have  accrued  at  current"  within  the  above  statute.  l>ick^ 
the  time  of  the  hvst  item  proved  in  such  inson  v.  Williams,  11  Cush.  258.J 
account."  This  does  not  apply  exclusive-  i  Davis  v.  Smith,  4  Grcenl.  337  ;  Sickles 
lyto  such  actions  as  are  brought  on  ac-  i-.  Mather,  20  Wend.  72. 
counts  in  which  debits  and  credits  are  ^  Gold  v.  Whitcomb,  14  Pick.  188  ; 
stated  and  a  balance  struck,  but  extends  Bull.  N.  P.  149.  In  England  since  Ld. 
also  to  cases  in  which  the  plaintiff  seeks  to  Tenterden's  Act  (9  Geo.  4,  ch.  14),  the 
recover  the  balance  due  to  him,  though  he  existence  of  items  within  six  years  in  an 
declares  only  on  the  debit  side  of  the  ac-  open  account,  will  not  operate  to  take  t  le 
count.  And  in  the  latter  case,  if  the  de-  previous  portion  of  the  account  out  ot  the 
fendant  does  not  file  an  account  in  set-off,  statute  of  limitations.  Cottam  v.  Part- 
ner prove  items  on  his  side  of  the  account  ridge,  4  M.  &  G.  271. 
by  way  of  payment,  but  relies  on  the  »  Farrington  v.  Lee,  1  Mod.  269 ;  2 
statute  of  limi'tations,  the  plaintiff  may  Mod.  311;  Cranch  v.  Kirkman,  Peake  s 
avoid  the  statute  by  showing  that  there  Cas.  121,  and  note  (1),  by  Day ;  Union 
was  a  mutual  and  open  account  current.  Bank  v.  Knapp,  3  Pick.  96. 
and  proving  an  item  on  either  side,  within  *  Trueman  v.  Hurst,  1  T.  R.  40 ;  Man- 
six  years.  Penniman  v.  Rotch,  3  Met.  deviUe  v.  Wilson,  5  Cranch,  1.5 ;  Bass  v. 
216.  Thus,  where  the  plaintiff  opened  an  Bass,  5  Pick.  187  ;  McLellan  v.  Crofton,  .5 
account  with  the  defendant  in  18.30,  and  Greenl.  307.  -o  c  ah  oo  a 
continued  to  make  charges  until  1833,  and  5  Hurst  v.  Parker,  1  B.  &  Aid.  92  :  J 
brought  an  action  on  his  account  in  1838,  Chitty,  249;  Oothout  v.  Thompson  20 
and  proved  on  the  trial  that  the  defendant  Johns.  277  ;  Brown  v.  Anderson  13  Mass. 
delivered  to  him  an  article  on  account  in  201  ;  Thompson  v.  Brown,  16  Mass.  1/2; 
1830,  it  was  held  that  there  was  a  mutual  Dawes  v.  Shed,  15  Mass.  6  ;  Vix  parti 
and  open  account  curi-ent,  and  that  no  Allen,  Id.  58;  Parkman  v  Osgood,  3 
part  of  the  plaintiff's  charges  were  barred  Greenl.  17. 
bv  the  statute  of  limitations.     Ibid.     The 


898  LAW  OF  EVIDENCE.  [PART  IV. 

of  the  United  States,  contains  an  exception  of  "  such  accounts  as 
concern  the  trade  of  merchandise  between  merchant  and  merchant^ 
their  factors  or  servants."  To  bring  a  case  within  this  exception, 
it  must  be  alleged  in  the  replication,  and  shown  by  proof,  to  con- 
form to  the  statute  in  each  of  those  particulars ;  every  part  of  the 
exception  being  equally  material.  The  exception  is  not  of  actions, 
nor  of  special  contracts,  nor  of  any  other  transactions  between 
merchants,  but  is  restricted  to  that  which  is  properly  matter  of  ac 
count,  or  consists  of  debits  and  credits  properly  arising  in  account.^ 
It  has  therefore  been  held,  that  such  claims  as  bills  of  eschange,^ 
or  a  contract  to  receive  half  the  profits  of  a  voyage  in  lieu  of 
freight,^  were  not  merchants'  accounts,  within  this  exception.  And 
as  the  exception  was  mtended  to  be  carved  out  of  cases  for  which 
an  action  of  account  lies,  and  as  this  action  does  not  lie  where  an 
account  has  already  been  stated  between  the  parties,  it  has  been 
held,  that  a  stated  account  is  not  within  the  exception  in  the  stat- 
ute.^ But  an  account  closed  by  a  mere  cessation  of  dealings,  we 
have  just  seen,  is  not  deemed  an  account  stated.  Whether  any 
but  current  accounts,  that  is,  those  which  contain  items  within  the 
statute  period,  are  within  this  exception,  is  a  point  upon  which  the 
authorities,  both  in  England  and  America,  are  not  uniform.  On 
the  one  hand,  it  is  maintained  upon  the  language  of  the  statute, 
that,  if  the  accounts  come  within  its  terms,  it  is  sufficient  to  save 
them,  though  there  have  been  no  dealings  within  the  six  years.^ 
Ou  the  other  hand  it  has  been  held,  that  where  all  accounts  have 
ceased  for  more  than  six  years,  the  statute  is  a  bar ;  and  that  the 
exception  applies  only  to  accounts  running  within  the  six  years  ; 
in  which  last  case  the  whole  account  is  saved  as  to  the  antecedent 
items.*'    The  account  also,  to  be  within  the  exception,  must  be 

1  Spring  V.    Gray,  5  Mason,   525,   per         ^  Spring  v.  Gray,  5  Mason,  505 ;  6  Pe- 
Storv,  J. ;  6  Peters,   155,  S.   C. ;  Cottam     ters,  155,  S.  C. 

t'.  Partridge,  4  M.  &  G.  271  ;  4  Scott,  N.  *  Webber  v.  Tivill,  2  Saund.  124,   127, 

R.  819.     A  mere  open  account,  without  note  (6),  (7),  by  Williams;  5  Mason,  526, 

any  agreement  that  the  goods  delivered  on  527. 

one  side  shall  go  in  payment  of  those  de-  ^  Mandeville  v,  Wilson,  5  Cranch,  15; 

livcrcd   on   the   other,  is   not  therefore  an  Bass  v.  Bass,  6  Pick.  362,  confirmed  in  8 

account    of    merchandise,   between   mer-  Pick.   187,  192;   McLellan   v.  Crofton,  6 

chants.     Ibid.     It  has  recently  been  held  Greenl.   307.      Such  is   now  the   rule  in 

in  England,  that  the  exception  as  to  mer-  England.     See  Kobinson  v.   Alexander,  8 

chants'  accounts  does  not   apply  to  an  ac-  Bligh,  N.  S.  352  ;  Inglis  v.  Haigh,  5  Jur. 

tion  of  indebitatus  assumpsit,  but  only  to  the  704  ;  8  M.  &  W.  769,  S.  C. 

action  of  account,  or  perhaps  to  an  action  ^  Wilford  v.  Liddel,  2  Vez.  400  ;  Coster 

on  the  case  for  not  accounting.     Inglis  v.  v.  Murray,  5  Johns,   ch.  522  ;  Spring  v. 

Haigh,  5  Jur.  704  ;  8  M.  &  W.   769.  Gray,  5  Mason,  505,  528 ;  6  Peters,  155. 

2  Chievly  v.  Bond,  4  Mod.  105;  Garth.  SeeAngell  on  Limitations,  ch.  14  ;  Ram- 
226  ;  1  Show.  341,  S.  C.  chander  v.  Hammond,  2  Johns  200- 


PART  IV.]  LIMITATIONS.  399 

such  as  concerns  the  trade  of  mercKandise  ;  that  is,  such  as  concerns 
traffic  in  merchandise,  where  there  is  a  buying  and  selling  of 
goods,  and  an  account  properly  arising  therefrom,^  The  existence 
of  mutual  debits  and  credits,  there  being  no  agreement  that  the 
articles  delivered  on  one  side  shall  go  in  payment  for  those  de- 
livered on  the  other,  has  been  held  insufficient  to  constitute  the 
accounts  intended  in  this  exception.^  And  it  is  necessary,  more 
over,  that  the  parties  to  the  account  be  merchants,  or  persons  who 
traffic  in  merchandise,  their  factor,  or  servants.^ 

§  448.  The  bar  of  this  statute  may  also  be  avoided  by  proof  of 
fraud  in  the  defendant,  committed  under  such  circumstances  as  to 
conceal  from  the  plaintiff  all  knowledge  of  the  fraud,  and  thus  pre- 
vent him  from  asserting  his  right,  until  a  period  beyond  the 
time  limited  by  the  statute.  But  such  fraudulent  concealment 
can  be  shown  only  under  a  proper  replication  of  the  fact.  And 
it  must  be  alleged  and  proved,  nor  only  that  the  plaintiff  did 
not  know  of  the  existence  of  the  cause  of  action,  but  that  the 
defendant  had  practised  fraud  in  order  to  prevent  the  plaintiff 
from  obtaining  that  knowledge  at  an  earlier  period.* 

1  Spring  V.  Gray,  5  Mason,  529,  per  Homer  v.  Fish,  1  Pick.  435 ;  "Welles  v. 
Story,  J.  ;  6  Peters,  155.  And  see  Sturt  Fish,  3  Pick.  74;  Farnham  v.  Brooks,  9 
V.  McUish,  2  Atk.  612;  Bridges  v.  Milch-  Pick.  212;  Jones  v.  Conowav,  4  Yeates, 
ell,  Burab.  217  ;  Gilb.  Eq.  E.  224.  109;    Bishop   v.   Little,   3    Greenl.   405; 

2  Cottam  V.  Partridge,  4  M.  &.  G.  271  ;  "Walley  v.  Walley,  3  Bligh,  12.  In  Neto 
4  Scott,  N.  R.  819,  S.  C.  York,  fraudulent  concealment  of  the  cause 

3  5  Mason,  530,  per  Story,  J.,  and  an-  of  action  will  not  prevent  the  operation  of 
thorities  there  cited  ;  5  Com.  Dig.  52,  tit.  the  statute.  Troup  v.  Smith,  20  Johns. 
Merchant,  A. ;  2  Salk.  445  ;  Hancock  40 ;  Allen  v.  Mille,  17  Wend.  202.  [See 
V.  Cook,  18  Pick.  32  ;  Wilkinson  on  Lira-  also  Moore  v.  Greene,  2  Curtis,  C.  C.  202  ; 
itations,  pp.  21-30;  Angell  on  Limita-  Carr  y.  Hilton,  1  lb.  390 ;  Rouse  r.  South- 
tions,  ch.  15.  ard,  39  Maine,  404;  Douglas  v.  Elkins,  8 

*  Angell  on  Limitations,  ch.  18  ;  Bree  v.  Foster  (N.  H.),  26  ;  Livermore  v.  Johnson, 

Holbeck,  2  Doug.  654,  confirmed  in  Brown  27  Miss.  284.]     [*In   Howell  v.  Howell, 

V.  Howard,  2  B.  &  B.  73,  75  ;  4  J.  B.  Moore,  15  Wise.  R.  it  is  held,  approving  Parker 

508,   S.  C. ;  and  in  Clark   v.  Hougham,  ?;.  Kane,  4  Wise.  R.  1,  that  an  action  may 

2  B.  &  C.  149,  153  ;  Short  v.  McCarthy,  3  be  barred  by  a  statute  of  limitations  passed 

B.  &  Aid.  626  ;  Granger  v.  George,  5  B.  after   the  cause  of  action   accrued,   if    a 

&  C.  149.     And   see   Macdonald   v.  Mac-  sufficient  and   reasonable  portion   of  the 

donald,  1  Bligh,  315.     See  also  Sherwood  time  of  limitation,  within  which  the  bill 

V.  Sutton,  5  Mason,  143,  where  all  the  au-  might  have  been  filed,  remained  after  th« 

thorities  are  reviewed  by  Story,  J.    First  enactment  of  the  statute.] 
Mass.  Turnp.  Co.  v.  Field,  3  Mass.  201  ; 


400  LAW   OF   EVIDENCE.  [I'ART  IV 


MALICIOUS    PROSECUTION. 

*  §  449.  What  must  be  proved  to  maintain  an  action  for  malicions  prosecution. 

450.  Fact  of  prosecution  proved  by  copies  of  the  record  and  proceedings.     What 

circumstances  may  be  shown. 

451.  Detention  is  the  gravamen  of  a  suit  for  causing  the  plaintiff  to  be  arrested  and 

detained  until  he  gave  bail. 

452.  Must  be  shown  that  the  prosecution  is  at  an  end,  and  that  the  plaintiff  was 

acquitted  of  the  charge. 

453.  Plaintiff  must  prove  that  prosecution  was  both  malicious  and  without  proba- 

ble cause.     Malice,  question  for  jury.     Charge  must  be  shown  to  have  been 
■wilfully  false. 

454.  Want  of  probable  cause  must  be  proved  affirmatively  by  plaintiff:  cannot  be 

inferred  as  a  necessary  consequence  ft-om  any  degree  of  malice  shown ;    is  a 
question  composed  of  law  and  fact. 

455.  What  will  amount  to  probable  cause  depends  on  the  circumstances  of  each 

case.     Discharge  of  plaintiff  by  examining  magistrate,  prima  facie  evidence 
of  want  of  probable  cause. 

456.  Plaintiff  is  entitled  to  indemnity  for  peril  occasioned  to  him  in  regard  to  his  life 

or  liberty,  injury  to  his  reputation,  fbelings,  and  person,  and  for  the  expenses 
to  which  he  has  necessarily  been  subjected. 

457.  Defence  usually  consists  in  disproving   malice,  and  showing  the  existence 

of  probable  cause  for  prosecution.     Proper  proof. 

458.  Ordinarily  character  of  plaintiff  not  in  issue. 

459.  Advice  of  counsel  upon  a  full  and  correct  statement  of  the  case  affords  proba- 

ble  cause.] 

§  449.  To  maintain  an  action  for  this  injury,  the  plaintiif  must 
prove,  —  (1.)  That  he  has  been  prosecuted  by  the  defendant, 
either  criminally,  or  in  a  civil  suit ;  and  that  the  prosecution  is 
at  an  end ;  (2.)  That  it  was  instituted  maliciously,  and  without 
probable  cause ;  (3.)  That  he  has  thereby  sustained  damage.  It 
is  not  necessary  that  the  whole  proceedings  be  utterly  groundless  ; 
for  if  groundless  charges  are  maliciously  and  without  probable 
cause  coupled  with  others,  which  are  well  founded,  they  are  not 
on  that  account  the  less  injurious,  and  therefore  constitute  a  valid 
cause  of  action.^     Nor  is  the  form  of  the  prosecution  material ;, 

1  Eeed  v.  Taylor,  4  Taunt.  516  ;  Wood  against  two  for  maliciously  conspiring  to 

V.  Buckley,  4  Co.  14;  Pierce  v.  Thomp-  have  the  plaintiff  indicted  for  perjurj',  need 

son,  6  Pick.  193;    Stone   v.   Crocker,  24  not  set  out  any  agreement  to  do  any  act  in 

Pick.   81.     [A  declaration  in   an    action  itself  unlawful,  or  any  act,  lawful  in  itself. 


PART  IV.J  MALICIOUS   PROSECUTION  401 

the  gravamen  being,  that  the  plaintiff  has  improperly  been  made 
the  subject  of  legal  process  to  his  damage.  If,  therefore,  a  com- 
mission of  bankruptcy  has  been  sued  out  against  him,  though  it 
was  afterwards  superseded  ;^  or  his  house  has  been  searched  under 
a  warrant  for  smuggled  or  stolen  goods ;  ^  or,  if  a  commission  of 
lunacy  has  been  taken  out  against  him  ;  ^  or,  if  special  damage  has 
resiilted  from  a  falso  claim  of  goods  ;^  or,  if  goods  have  been  ex- 
torted from  him  by  duress  of  imprisonment,  or  abuse  of  legal  pro- 
cess ;  ^  or,  if  he  has  been  arrested  and  held  to  bail  for  a  debt  not  due, 
or  for  more  than  was  due  ;  ^  and  it  was  done  maliciously,  and  with- 
out probable  cause  ;  he  may  have  this  remedy  for  the  injury.  The 
action,  moreover,  is  to  be  brought  against  the  party  who  actually 
caused  the  injury,  and  not  against  one  who  was  only  a  nominal 
party.  And  therefore,  if  one  commence  a  suit  in  the  name  of 
anotlier,  without  his  authority,  and  attach  the  goods  of  the  de- 
fondant,  with  mahcious  intent  to  vex  and  harass  him,  this  action 
lies,  though  the  suit  was  for  a  just  cause  of  action.'^  But  where 
the  suit  was  commenced  by  the  attorney  of  the  party,  in  the  course 
of  his  general  employment,  though  without  the  knowledge  or 
assent  of  his  client,  it  seems  that  the  party  himself  is  liable.^  The 
attorney  is  not  liable,  unless  he  acted  wholly  without  authority, 
or  conspired  with  his  client  to  oppress  and  harass  the  plaintiff.^ 
Nor  is  it  material,  that  the  plaintiff  was  prosecuted  by  an  insuffi- 
cient process,  or  before  a  court  not  having  jurisdiction  of  the 
matter ;  for  a  bad  indictment  may  serve  all  the  purposes  of  mal- 
ice, as  well  as  a  good  one ;  and  the  injury  to  the  party  is  not  on 
that  account  less  than  if  the  process  had  been  regular,  and  before 
a  competent  tribunal.-^^ 

by  unlawful  means.     Parker  i).  Hunting-  ®  Savage  r.  Brewer,  15  Pick.  453  ;  Went- 

ton,  2    Gray,    125;  Page  v.   Gushing,  38  worth  v.  Bullen,  9  B.  &  G.  840;  Ray  v. 

Maine,  523."   See  also  Churciiill  i;.  Siggcrs,  Law,  1  Peters,  C.  C.  Rep.  210;  Sommer 

26  Kng.  Law  &  Eq.  200.     The  action  can-  v.  Wilt,  4  S.  &  R.  19. 

not  he  sustained  without    the    allegation  '  Pierce    v.   Thompson,   6    Pick.    193. 

and  proof  of  legal  damage  to  the  plaintiff.  [AVhcther  an  action  of  malicious  prosecu- 

CottcrcU  v.  Jones,  7  Eng.  Law  &  Eq.  475.]  tion  can  be  maintained  against  a  corpora- 

[*  Barron  v.  Mason,  31  Vt.  198.]  tion,  qimre.    Stevens  v.  Midland,  &c.  Rail- 

1   Brown   v.    Chapman,   3   Burr.  1418;  way  Co.,  26  Eng.  Law  &  Eq.  410.] 

Chapman    v.  Pickersgill,    2    Wils.    145  ;  ^  Jones  v.  Nichols,  3  M.  &  P.  12. 

IFarlie   v.  Danks,   30   Eng.  Law   &  Eq.  ^  Bicknell  i'.  Dorion,  16  Pick.  468. 

115,  J  w  Chambers  v    Robinson,  1   Stra.  691  ; 

-  Boot  V.  Cooper,  1  T.  R.  535.  Anon.  2  Mod.  306 ;  Saville  v.  Roberts,  I 

»  Turner  v.  Turner,  Gow,  20.  Ld.  Raym.  374,  381  ;  Jones  v.  Givin,  Gilb. 

*  Green  v.  Button,  2  C.  M.  &  R.  707  ;  Gas.  185,  201  -206,  221  ;  Pippetw.  Ilearn, 

1  T\T.  &  Gr.  118.  5  B.  &  Aid.  634.     [Where  the  magistrate 

5  "Grainger  v.  Hill,  4  Bing.  N.  C.  212  ;  has  no  jurisdiction  of  the  offence  of  which 

3    Scott,    561 ;    Plummer   v.   Dennett,   6  the  plaintiff  was  accused,  the  proceedings 

Grcenl.  421.  before  him  are  of  no  legal  force  or  validity. 

VOL.  II.  26 


402  LAW   OF   EVIDENCE.  [PART  IV. 

§  450.  (1.)  Tlie  fact  of  the  prosecution  will  be  proved  by  duly 
authenticated  copies  of  the  record  and  proceedings.^  Some  evi- 
dence must  also  be  given,  that  the  defendant  was  the  prosecutor. 
To  this  end,  a  copy  of  the  indictment,  with  the  defendant's  name 
indorsed  as  a  witness,  is  admissible  as  evidence  that  he  was 
sworn  to  the  bill ;  but  this  fact  may  also  be  proved  by  one  of 
the  grand  jury,  or  other  competent  testimony .^  It  may  also  bo 
shown,  that  the  defendant  employed  counsel  or  other  persons,  to 
assist  in  the  prosecution ;  or,  that  he  gave  instructions,  paid  ex- 
penses,  procured  witnesses,  or  was  otherwise  active  in  forward- 
ing it. 

§  451.  Where  the  suit  is  for  causing  the  plaintiff  to  be  mali- 
ciously arrested  and  detained  until  he  gave  bail,  it  is  sufficient  for 
him  to  show  a  detention,  without  proving  that  he  put  in  bail ; 
for  the  detention  is  the  principal  gravamen  ;  and  is  in  itself  prima 
facie  evidence  of  an  arrest,^  though  tlie  mere  giving  of  bail  is  not.^ 
But  if  the  declaration  is  framed  upon  the  fact  of  maliciously 
causing  the  plaintiff  to  be  held  to  bail,  no  evidence  of  a  previous 
arrest  is  necessary.^ 

§  452.  It  must  also  appear,  that  the  prosecution  is  at  an  end.^ 
If  it  was  a  civil  suit,  its  termination  may  be  shown  by  proof  of  a 
rule  to  discontinue  on  payment  of  costs,  and  that  the  costs  were 
taxed  and  paid  ;  without  proof  of  judgment  or  production  of  the 
record  ; ''  but  an  order  to  stay  proceedings  is  not  alone  sufficient.'* 
If  it  was  terminated  by  a  judgment,  this  is  proved  by  the  record. 
But  where  the  action  is  for  abusing  the  process  of  law,  in  order 

and  they  are  therefore  insufficient  to  sus-  6  Mod.  216.    See,  as  to  the  competency  of 

tain  an  action  for  malicious  prosecution,  grand  jurors,  ante,  Vol.  1,  §  2.52. 

Bixby  V.  Brundige,  2  Gray,  129.     But  see  ^  Bristow  v.  Haywood,  1   Stark.  48;  4 

Morris  v.  Scott,  21  Wend.  281;  Stone  v.  Campb.  213,  S.  C. ;  Whalley  r.  Pepper,  7 

Stevens,  12  Conn.  219;  Hays  v.  Young-  C.  &  P.  506. 

love,  7  B.  Mon.  545.]  *  Berry  r.  Adamson,  6  B.  &  C.  528  ;  2 

1  For  the  law   respecting  variance  be-  C.  «&  P.  503,  S.  C. 

tween  the  allegation   and  the   proof,  see  ^  Ibid. ;  Small  v.  Gray,  2  C.  &  P.  605. 

an/e.  Vol.  1,  §§  63,  64,  65.     If  the  prose-  ^  Arundell    v.    Tregono,     Yelv.     116; 

cution  was  in  a  foreign  country,  a  copy  of  Hunter  v.  French,  Willes,  517;  Lewis  u. 

the  record  is  not  indispensably  necessary,  Farrell,  1  Stra.  114;  Shock  u.  McChesney, 

but   other  evidence  of  the  facts  may  be  2  Yeates,  473,  475. 

received.     Young  v.  Gregory,  3  Call,  446.  "^  Bristow  v.  Haywood,  4  Campb.  213  ; 

[To  sustain  an  action  for  malicious  prose-  French  v.  Kirk,  1  Esp.  80  ,  Brook  v.  Car- 

cution,  the  plaintiff  must  prove  by  the  rec-  penter,  3  Bing.  297  ;  Watkins  v.  Lee,  6  M. 

ord,  or  a  copy  thereof,  the  proceedings   in  &  W.  270. 

the  prosecution  against  him,  and  his  ac-  ^  Wilkinson  v.  Howell,  1    M.  &  Malk. 

quittal.     Sayles  tJ.  Briggs,  4  Met.  421.]  495.     Nor  is  an   order   to   supersede   the 

2  Rex  V.  Commercll,  4  M.  &  S.  203  ;  commissioner  sufficient,  in  a  case  of  bank- 
Rex  V.  Smith,  1  Burr.  54 ;  Rex  v.  Kettle-  ruptcy.  Poynton  v.  Forster,  3  Campb 
worth,  5  T.  R.  33  ;  Johnson  v.  Browning.  60 


fART  IV.J  MALICIOUS   PROSECUTION.  403 

illegally  to  compel  a  party  to  do  a  collateral  thing,  such  as  to 
give  up  his  property,  it  is  not  necessary  to  aver  and  prove  that 
the  process  improperly  employed  is  at  an  end,  nor  that  it  was 
Bued  out  without  reasonable  or  probable  cause.^     So,  if  it  was  a 
criminal  prosecution,  the  like  evidence  must  be  given  of  its  termi 
nation.     And  it  must  appear  that  the  plaintiff  was  acquitted  of  the 
charge ;  it  is  not  enough  that  the  indictment  was  ended  by  the 
entry  of  a  nolle  prosequi  ;  though  if  the  party  pleaded  not  guilty, 
and  the  Attorney-General  confessed  the  plea,  this  would  suffice.^ 
So,  if  he  was  acquitted  because  of  a  defect  in  the  indictment,  it 
is  sufficient.3     If  the  party  has  been  arrested  and  bound  over,  on  a 
criminal  charge,  but  the  grand  jury  did  not  find  a  bill  against  him, 
proof  of  this  fact  is  not  enough,  without  also  showing  that  he  has 
been  regularly  discharged  by  order  of  court ;   for  the  court  may 
have  power  to  detain  him,  for  good  cause,  until  a  farther  charge  is 
preferred  for  the  same  offence.*     But,  in  other  cases,  the  return  of 
ignoramus  on  a  bill,  by  the  grand  jury,  has  been  deemed  sufficient.^ 
§  453.    (2.)  The  plaintiff  must  also  show  that  the  prosecution 
was  instituted  maliciously,  and  without  probable  cause;   and  both 
these   must  concur.^     If  it  were   malicious  and   unfounded,  but 
there  was  probable  cause  for  the  prosecution,  this  action  cannot 
be  maintained."     The  question  of  malice  is  for  the  jury ;    and  to 
sustain  this  averment  the  charge  must  be  shown  to  have  been  wil- 
fully false .^     In  a  legal  sense,  any  unlawful  act,  done  wilfully  and 
purposely  to  the  injury  of  another,  is,  as  against  that  person,  ma- 

1  Grainjrer  v.  Hill,  4  Bing.  N.  C.  212;  ^  Morgan    v.   Hughes    2   T.   R.   225  ; 
3  Scott  561    S   C.  Anon.  Sty.  372 ;  Atwood  v.  Monger,  bty. 

2  Goddard  i-.'  Smith,  1  Salk.  21  ;  6  Mod.  378 ;  Jones  v.  Givin,  Gilb.  Gas.  185,  220. 
261  S.  C.;  Smith  i;.  Shackelford,  1  Nott  «  Farmer  v.  Darhng,  4  Burr.  1971; 
&  M'C.  36;  Fisher  v.  Bristow,  1  Doug.  Stone  i'.  Crocker,  24  Pick.  81,  83;  Bell  v. 
215  •  Moro-an  v  Huohes  2  T.  R.  225  ;  I Ba-  Graham,  1  Nott  &  M'C.  278  ;  Hall  v.  Suy- 
con  'v  Totvne,  4  Ca'sh.  217  ;  Parker  v.  Far-  dam,  6  Barb.  S.  C.  R.  83.  [*  See  note  3, 
lev  10  Cush.  279;  and  where  the  magis-  §454,  infra.  Ritchey  v.  Davis,  11  Iowa, 
trat'e  has  authority  onlv  to  bind  over  or  124  ;  Kirkpatrick  u.  Kirkpatnck,  39  lenn. 
discharge  a  person  accused,  and  he  dis-  St.  288.  It  must  clearly  appear  that  the 
char^es^him,  the  discharge  is  equivalent  to  prosecution  was  groundless,  and  that  it 
an  acquittal,  and  will  avail  as  evidence  to  was  so  known,  or  might  have  been  known 
support  an  allegation  of  acquittal  in  a  dec-  to  the  prosecutor.  Ib.J  Whether,  tliere- 
laration  for  malicious  prosecution.  Sayles  fore,  this  action  lies  against  a  corporation, 
r.  Brigrcs,  4  Met.  421.]  [*  Nothing  short  qimre ;  and  see  McLellan  v.  Bank  ot  Cum- 
of  an  acquittal  is  sufficient,  where  the  pros-  berland,  9  Law  Rep.  82. 

ecutor  has  progressed  to  a  trial  before  a  ^  Arbuckle  v.    laylor,   3   Dowl.    IfaO; 

petty  iurv.     Kirkpatrick  y.  Kirkpatrick,  39  Turner  r.  Turner,  Gow,  20. 

Penn   St'  288  1  **  Cohen  v.  Morgan,  6  D.  &  R.  8  ;  John- 

8  Wicks  V.  Fentham,  4  T.  R.  247.  stone  v.  Sutton,  1  T.  R.  540  ;  Jackson  v. 

*  Thomas  v.  Do  Graflfenreid,  2  Nott  &  Burleigh,  3  Esp.  34 ;  Austin  v.  Debiiam, 

M'C.  143.     And  see  Weinberger  v.  Shelly,  3  B.  &  C.  139  ;  Burley  t^  Bcthune,  5  Taunt 

6  W.  &  S.  336.  580;  Grant  v.  Duel,  3  Rob.  Louis.  K.  17. 


404 


LAW   OF  EVIDENCE. 


[part  IV. 


licioiis.i  And  if  the  immediate  act  be  done  unwillingly  and  by  co- 
ercion, as,  where  the  party  preferred  an  indictment  because  he  was 
bound  over  so  to  do,  yet,  if  he  was  himself  the  cause  of  the  coer- 
cion, as,  by  originally  making  a  malicious  charge  before  the  magis- 
trate, this  will  sustain  the  averment  of  malice.^  The  proof  of  mal 
ice  need  not  be  direct ;  it  may  be  inferred  from  circumstances 
^ut  it  is  not  to  be  inferred,  from  the  mere  fact  of  the  plaintiff's  ac- 
quittal for  want  of  the  prosecutor's  appearance  when  called  ;  ^  nor, 
in  the  case  of  civil  suit,  from  the  parties  suing  out  the  writ,  or  neg- 
lecting to  countermand  it,  after  payment  of  the  debt.*  But  it 
may  be  inferred  by  the  jury,  from  the  want  of  probable  cause.^ 
Malice  may  also  be  proved  by  evidence  of  the  defendant's  conduct 
and  declarations,  and  his  forwardness  and  activity  in  exposing  the 
plaintiff,  by  a  publication  of  the  proceedings  against  him,  or  by  any 


1  Commonwealth  v.  Snelling,  15  Pick. 
321,  330;  Stokley  v.  Harnidge,  8  C.  &  P. 
11.  The  law,  as  to  malice,  was  clearly 
ilhistrated  by  Parke,  J.,  in  Mitcliell  v.  Jen- 
kins, 7  B.  &  Ad.  588,  594,  in  the  following 
terms  :  "  I  have  always  understood,  since 
the  case  of  Johnstone  v.  Sutton,  1  T.  R. 
510,  which  was  decided  long  before  I  was 
in  tiie  profession,  that  no  point  of  law  was 
more  clearly  settled  than  that,  in  every 
action  for  a  malicious  prosecution  or  arrest, 
the  plaintiff  must  prove  what  is  averred  in 
the  declaration,  viz.  that  the  prosecution 
or  arrest  was  malicious,  and  without  rea- 
sonable or  probable  cause ;  if  there  be  rea- 
sonable or  probable  cause,  no  malice,  how- 
ever distinctly  proved,  will  make  the  de- 
fendant liable ;  but  when  there  is  no  rea- 
sonable or  probable  cause,  it  is  for  the  jury 
to  infer  malice  from  the  facts  proved.  That 
is  a  question  in  all  cases  for  their  consider- 
ation ;  and  it  having  in  this  instance  been 
withdrawn  from  them,  it  is  impossible  to 
say,  whether  they  might  or  might  not  have 
come  to  the  conclusion  that  the  arrest  was 
malicious.  It  was  for  them  to  decide  it, 
and  not  for  the  judge.  I  can  conceive  a 
case,  where  there  are  mutual  accounts  be- 
tween parties,  and  where  an  arrest  lor  the 
whole  sum  claimed  by  the  plaintitF  would 
not  be  malicious ;  for  example,  the  plain- 
tiff might  know  that  the  set-off  was  open 
to  dispute,  and  that  there  was  reasonable 
ground  for  disputing  it.  In  that  case, 
though  it  miyjbt  afterwards  appear  that 
the  set-off  did  exist,  the  arrest  would  not 
be  malicious.  The  term  'malice,'  in  this 
form  of  action,  is  not  to  be  considered  in 
the  sense  of  spite  or  hatred  against  an 
individual,  but  of  mains  animus,  and  as 
denoting  that  the  party  is  actuated  by  im- 


proper and  indirect  motives.  That  would 
not  be  the  case  where,  there  being  an  un- 
settled account,  with  items  on  both  sides, 
one  of  the  parties,  believing  bona  Jide  that 
a  certain  sum  was  due  to  him,  arre-ited  his 
debtor  for  that  sum,  though  it  afterwards 
ajijjeared  that  a  less  sum  was  due  ;  nor 
where  a  party  made  such  an  arrest,  acting 
bona  Jide  under  a  wi'ong  notion  of  the  law, 
and  pursuant  to  legal  advice."  And  see 
Haddrick  v.  Heslop,  12  Ad.  &  El.  267,  N. 
S. ;  [Bacon  v.  Towne,  4  Cush.  217  ;  Park- 
er V.  Farley,  10  Cash.  281  ;  Parker  v. 
Huntington,  2  Gray,  125;  McGiirn  v. 
Brackett,  33  Maine,  331  ;  Beach  v.  Wheel- 
er, 24  Penn.  State  R.  212 ;  Lang  v.  Rodg- 
ers,  19  Ala.  321  ;  Stevens  v.  The  Midland 
Co.  Railway  Co.,  26  Eng.  Law  &  Eq. 
R.  410 ;  Wheeler  v.  Kesbitt,  24  How. 
.545.] 

2  Dubois  V.  Keates,  4  Jar.  148 ;  3  P.  & 
D.  306,  S.  C. 

3  Purcell  V.  Macnamara,  9  East,  361  ; 
1  Campb.  199,  S.  C. ;  Sykes  v.  Dunbar, 
Id.  202,  n. 

*  Gibson  v.  Chaters,  2  B.  &  P.  129; 
Seheibel  v.  Fairbain,  1  B.  &  P.  388 ;  Page 
V.  Wiple,  3  East,  314.  Nor  from  the 
action  being  non-prossed,  or  discontinued  ; 
Sinclair  v.  Eldied,  4  Taunt.  7 ;  unless 
coupled  with  other  circumstances.  Bris- 
tow  V.  Heywood,  1  Stark.  48 ;  Nicholson 
V.  Coghill,  4  B.  &  C.  21  ;  6  D.  &  R.  12. 

5  Murray  v.  Lont:,  1  Wend.  440 ;  Cro- 
zer  V.  Pilling,  4  B'.  &  C.  26 ;  Mitchell  v. 
Jenkins,  5  B.  &  Ad.  588  ;  1  Nev.  &  M. 
301  ;  Turner  v.  Tumer,  Gow,  20  ;  Merri- 
am  V.  Mitchell,  1  Shepl.  439  ;  Hall  v.  Suy 
dam,  6  Barb.  S.  C.  R.  83  ;  Crassa  ifpwran- 
tia  has  been  held  to  amount  to  malice. 
Brookes  v   Warwick.  2  Stark.  389. 


PART  IV.] 


MALICIOUS  PROSECUTION. 


405 


other  publications  by  the  defendant,  on  the  subject  of  the  charge.^ 
And  if  the  prosecution  was  against  the  plaintiff  jointly  with  anoth- 
er, evidence  of  the  defendant's  malice  against  the  other  party  is 
admissible,  as  tending  to  show  his  bad  motives  against  both.^ 

§  454.  The  want  of  probable  eause  is  a  material  averment,  and, 
though  negative  in  its  form  and  character,  it  must  be  proved  by  the 
plaintifi*,  by  some  affirmative  evidence  ;  ^  unless  the  defendant  dis- 
penses with  this  proof,  by  pleading  singly  the  truth  of  the  facts  in- 
volved in  the  prosecution.*  It  is  independent  of  malicious  motive, 
and  cannot  be  inferred,  as  a  necessary  consequence,  from  any  de- 
gree of  malice  which  may  be  shown. ^  Probable  cause  for  a  crimi- 
nal prosecution  is  understood  to  be  such  conduct  on  the  part  of  the 
accused  as  may  induce  the  court  to  infer  that  the  prosecution  was 
undertaken  from  public  motives.^  In  the  case  of  a  private  suitj  it 
may  consist  of  such  facts  and  circumstances  as  lead  to  the  infer- 
ence that  the  party  was  actuated  by  an  honest  and  reasonable  con- 
viction of  the  justice  of  the  suit.  And  in  either  case,  it  must  ap- 
pear that  the  facts,  or  so  much  of  them  as  was  sufficient  to  induce 
the  belief,  were  communicated  to  the  defendant  before  ho  com- 
menced the  prosecution  or  suit.^     In  revenue  and  admiralty  cases, 


"  Chambers  v.  Robinson,  I  Stra.  691. 

2  Caddy  v.  Barlow,  1  M.  &  Ry.  275. 

8  Ante,  Vol.  1,  §  78;  PurccU  v.  Macna- 
mara,  1  Campb.  199;  9  East,  361  ;  Mc- 
Coruiifkc.  Sisson,  7  Cowcn,  71.5  ;  Murray 
V.  Lonj^,  1  Wend.  140 ;  Gorton  v.  De 
An<;elis,  6  Wend.  418;  Incledon  v.  Barry, 
1  Cauipb.  -20.3,  n. ;  Taylor  v.   Williams,  2 

B.  &  Ad.  845;  6  Bing.  183.  Where  the 
declaration  alleged  a  prosecution  of  the 
plaintiff  for  perjury  in  a  certain  cause,  and 
tiie  indictment  was  set  forth  containing 
two  several  assignments  of  perjury  ;  it  was 
held  that  the  declaration  was  supported  by 
proof  of  malice  and  the  want  of  probable 
cause  as  to  one  only  of  the  assignments. 
Ellis  V.  Abrahams,  10  Juv.  593. 

*  Morris  v.  Corson,  7  Cowen,  281.  See 
also  Sterling  v.  Adams,  3  Dav,  411. 

f-  1  Camp.  206,  n.  (a)  ;  Sykes  v.  Dun- 
bar, Id.  502,  n.  (a) ;  Horn  v.  Boon,  3 
Strobh  307  ;  Hall  v.  Suydam,  6  Barb.  S. 

C.  R.  Si ;  [Bacon  v.  Towne,  4  Cush.  217  ; 
['arker  v.  Farley,  10  Cush.  281  ;  Heslop  v. 
Chapman,  22  Eng.  Law  &  Eq.  R.  296; 
Kidder  v.  Parkhurst,  3  Allen,  393.] 

«  Ulmer  v.  Leland,  1  Greenl.  135.  Or, 
such  a  suspicion  as  would  induce  a  reason- 
able man  to  commence  a  prosecution. 
Cabaness  v.  Martin,  3  Dev.  454.  Or,  a 
reasonable  ground  of  suspicion,  supported 


by  circumstances  sufficient  to  warrant  a 
cautious  man  in  believing  tbat  the  party 
is  guiltv  of  the  offence.  Mimns  v.  Dnpont, 
3  Wasii.  C.  C.  R.  31  ;  Foshay  v.  Fergu- 
son, 2  Dcnio,  617.  [Probable  cause  is 
such  a  state  of  facts,  in  the  mind  of  the 
prosecutor,  as  would  lead  a  man  of  ordi- 
nary caution  and  prudence  to  believe,  or 
entertain  an  honest  and  strong  suspicion, 
that  the  person  arrested  is  guilty.  By 
Shaw,  C.  J.,  in  Bacon  v.  Towne,  4  Cush. 
238;  McGurn  v.  Brackett,  33  Maine,  331. 
Where  the  malicious  prosecution  of  the 
plaintiff  by  the  defendant  was  on  the 
charge  of  maliciously  breaking  down  and 
leaving  open  a  fence  between  the  land  of 
tiie  plaintiff  and  of  the  defendant,  the 
dividing  line  between  which  had  been  set- 
tled by  arbitration,  in  an  action  to  recover 
damages  for  such  malicious  prosecution, 
evidence  of  prior  wrongful  removals  of  the 
fence  by  the  plaintiff,  before  the  submission 
to  arbitration,  cannot  be  shown  by  the 
defendant  to  prove  probable  cause  for  the 
prosecution.  Tillotson  v.  Warner,  3  Gray, 
574.]  [*  The  plaintiff  must  show  that  tho 
conduct  of  the  defendant  was  such  as  to 
lead  to  the  inference  that  the  prosecutioa 
was  not  undertaken  from  public  purposes. 
Cecil  V.  Clarke,  17  Md.  508.] 
7  Delegal   v.   Higliley,   3   Bing.   N.  G. 


40b 


LAW   OF  EVIDENCE. 


[part  IV. 


probable  cause  for  a  seizure  or  a  capture  is  made  out,  when  the 
officer  shows  such  reasons  for  the  act  as  were  sufficient  to  warrant 
a  prudent,  intelligent,  and  cautious  man  in  drawing  the  same  con- 
clusion.^ Thus,  where  the  commander  of  a  national  vessel  was 
prosecuted  for  the  capture  of  a  vessel  on  the  coast  of  Africa,  on 
suspicion  of  her  being  a  slaver,  proof  that  he  "  acted  with  intelli- 
gent and  honorable  discretion"  in  arresting  and  sending  her  to 
this  country  for  adjudication,  was  held  sufficient  evidence  of  proba- 
ble cause,2  The  question  of  probable  cause  is  composed  of  law 
and  fact ;  it  being  the  province  of  the  jury  to  detennine  whether 
the  circumstances  alleged  are  true  or  not ;  and  of  the  court  to  de- 
termine whether  they  amount  to  probable  cause.''^     Regularly,  the 


950;  Seibcrt  v.  Price,  5  "Watts  &  Serg. 
438;  Foshay  v.  Ferguson,  2  Denio,  617; 
[Bacon  v.  Towne,  4  Cush.  238.]  [*  Facts 
not  known  to  defendant  at  the  time  of  iiis 
procurement  of  piaintitl's  arrest  are  not 
competent  to  show  presence  or  absence  of 
probable  cause.  Cecil  v.  Clarke,  17  Md. 
508.] 

1  Shattuck  V.  Maley,  1  Wash.  C.  C.  R. 
247,  249. 

2  Lovett  V.  Bispham,  2  Am.  Law  Journ. 
97,  108,  N.  S. 

3  Johnstone  v.  Sutton,  1  T.  R.  545  ;  1 
Bro.  P.  C.  76,  S.  C.  ;  Blachford  v.  Dod, 
2  B.  &  Ad.  184;  Ulmer  v.  Leland,  1 
Green!.  135;  Stone  v.  Crocker,  24  Pick. 
81 ;  Piiutou  V,  Wmamst  1  G.  &  D.  504  ; 
2  Ad.  &  El.  169,  "N.  S. ;  Watson  v.  Whit- 
more,  8  Jur.  964;  14  Law  Journ.  41,  N. 
S. ;  Hall  V.  Suydam,  stipi-a  ;  Horn  v.  Boon, 
supra ;  Newell  v.  Downs,  8  Blackf  523  ; 
Sims  V.  McLendon,  3  Strobh.  557  ;  [Tay- 
lor V.  Godfrey,  36  Maine,  525  ;  Bulkley  v. 
Smith,  2  Duer  (N.  Y.)  261;  Bulldey  v. 
Keteltas,  2  Selden  (N.  Y.)  384;  Carpen- 
ter V.  Shelden,  5  Sandf.  77 ;  Jacks  v. 
Stimpson,  13  111.  701  ;  Ash  v.  Marlow,  20 
Ohio,  119;  Kidder  v.  Parkhurst,  3  Allen, 
393.]  [*  HavinLT  had  occasion  to  consider 
the  subject  of  malicious  prosecution  very 
thoroughly  in  the  case  of  Barron  v.  Ma- 
son reported  in  31  Vt.  189,  we  take  the 
liberty  of  inserting  here  a  large  part  of 
the  opinion  in  that  case  as  embodying 
our  views  of  the  present  law  on  this  sub- 
ject :  — 

"  The  books  upon  this  point  all  concur 
in  saying  that  the  plaintiff  must  prove 
(and  of  course  the  defendant  may  disprove) 
both  want  of  probable  cause  and  malice. 
And  it  is  the  duty  of  the  court  to  instruct 
the  jury  fully  and  correctly  upon  the 
whole  case,  as  the  testimony  tends  to  show 
the  facta. 


"If  it  be  admitted  that  testimony  that 
the  plaintiff  had  been  guilty  of  other  sim- 
ilar offences,  or  that  he  was  reputed  guilty, 
and  that  this  had  come  to  the  knowledge 
of  the  defendant  before  he  instituted  the 
prosecution,  has  no  legal  tendency  to  show 
either  probable  cause  or  want  of  malice  in 
ordinary  cases,  such  as  larceny;  it  must 
also  be  admitted,  we  think,  that  in  that 
class  of  offences  where  the  gist  of  the 
crime  consists  in  the  bad  purpose  with 
which  an  act  otherwise  innocent  is  done, 
this  kind  of  testimony  is  admissible,  even 
upon  the  question  of  actual  guilt,  and 
much  more  upon  that  of  probable  cause. 
For  probable  cause  is  not  to  be  confounded 
with  actual  guilt.  Probable  cause  is  only  \ 
such  a  state  of  facts  and  circumstances  as 
would  lead  a  careful  and  conscientious 
man  to  believe  that  the  plaintiff  was  guilty. 
This  can  only  require  that  the  defendant, 
upon  prudent  and  careful  inquiry,  shall 
find  the  reputed  or  declared  existence  of 
such  facts  as  indicate  guilt,  with  reason- 
able certainty.  Mere  general  reputation 
will  not  alone  constitute  probable  cause. 
For  a  prudent  man,  in  instituting  an  im- 
portant criminal  prosecution,  would  ordi- 
narily look  farther,  and  inquire  for  testi 
mon}'.  But  this  he  might  fairly  believe 
existed  short  of  being  told  so  by  the  wit- 
nesses themselves.  It  is  not  often  the 
case,  perhaps,  that  the  public  prosecuting 
officers,  before  making  complaint,  have 
ojiportunity  to  converse  personally  with 
the  witnesses.  But  they  should  know 
something  more  than  a  mere  vague  general 
report  of  guilt.  They  should  have  infor- 
mation, with  such  directness  and  certain- 
ty as  to  gain  credit  with  prudent  men,  of 
the  existence  and  susceptibility  of  proof 
of  such  facts  as  show  guilt;  or  which  the 
defendant,  upon  proper  advice,  supposed 
would   constitute  guilt.     This  is  the  fair 


PART  IV.] 


MALICIOUS   PROSECUTION. 


407 


facts  material  to  this  question  are  first  to  be  found  by  the  jury,  and 
the  judge  is  then  to  decide,  as  a  point  of  law,  whether  the  facts, 


result  of  the  decided  cases,  and  of  common 
experience  upon  the  suhject. 

"  Now,  in  the  class  of  cases  referred  to, 
where  the  guilt  or  innocence  of  the  act 
depends  upon  the  motive,  the  conduct  and 
declarations  of  the  party,  as  to  other  sim- 
ilar transactions  about  the  same  time,  are 
always  admissible  to  prove  actual  guilt. 
As,  for  instance,  in  cases  of  passing,  or 
having  in  possession  with  intent  to  pass, 
counterfeit  coin  or  bills,  it  is  familiar  law 
that  the  prosecutor  may  give  in  evidence 
other  similar  offences  committed  by  the 
accused  about  the  same  time,  for  the  pur- 
pose of  showing  his  intent  in  the  particu- 
lar transaction.  So  also  in  cases  of  embez- 
zlement, and  some  other  similar  offences. 
And  this  rule  would  no  doubt  extend  to 
the  proof  of  the  very  facts  which  the  court 
in  tills  case  told  the  jury  had  no  other 
effect  but  to  mitigate  damages.  *  *  *  * 

We  should  infer  that  the  court  below 
did  not  regard  the  question  of  malice  as 
directly  and  independently  involved  in 
the  case.  From  what  of  the  charge  is 
civen,  the  question  of  malice  seems  to 
have  been  treated  as  a  mere  inference 
from  the  jiroof  of  tiie  want  of  probable 
cause.  And  so  it  is,  prima  facie.  But, 
nevertheless,  it  may  be  disproved  by  a 
great  variety  of  proof  of  a  much  lower 
grade  than  that  which  is  requisite  to  show 
probable  cause.  For  this  purpose  common 
repute,  not  only  as  to  general  bad  charac- 
ter, but  also  as  to  the  particular  offence, 
may,  we  incline  to  think,  be  shown.  For 
this  latter  is  nothing  less  than  the  declara- 
tion of  third  parties  that  the  plaintiff  was 
guilty  of  the  particular  offence,  which  is 
declared  admissible  in  the  ca-^e  of  French 
V.  Smith,  4  Vt.  363.  It  is  undeniable  that 
the  general  belief  of  one's  guilt,  in  regard 
to  a  particular  offence,  will  influence  to  a 
certain  extent  the  conduct  of  the  most  pru- 
dent prosecutor  in  regard  to  instituting 
proceedings.  How  then  can  it  be  said 
that  it  has  no  legitimate  bearing  upon  the 
question  of  malice?  We  think  it  impos- 
sible to  so  hold,  without  violating  tlie  most 
obvious  principles  of  human  experience 
and  human  conduct.  1  Phil.  Ev.  115; 
Rodriguez  i*.  Tadmire,  2  Esp.  Cases,  720. 
And  general  bad  reputation  is  often  a  di- 
rect element  in  the  proof  of  the  respond- 
ent's guilt,  when  he  offers  proof  of  good 
character  in  exculpation. 

"  This  testimony  was  admitted  to  go  to 
the  jury  upon  the  question  of  damages. 
But  its  chief,  if  not  its  only  legitimate 
bearing  upon  that  question,  must  have 
depended  unon  its  tendency  to  relmt  the 


inference  of  malice,  and  so  far  as  it  had 
any  such  tendency,  it  was,  for  that  very 
reason,  competent  evidence  npon  the  main 
issue  in  the  case.  It  is  said,  indeed,  in 
Hall  V.  Suydam,  6  Barb.  83,  that  good 
faith  merely  is  not  enough  to  protect  the 
party  from  liability  for  malicious  jjrosecu- 
tion  in  regard  to  a  criminal  charge.  But 
from  the  whole  case,  it  is  obvious  that  this 
is  said  wholly  in  regard  to  the  proof  of 
probable  cause.  For  it  is  found  in  almost 
every  book  upon  the  subject,  that  if  the 
defendant,  however  causelessly,  did  really 
act  in  good  faith  and  without  nialice  in 
preferring  the  charge,  he  cannot  be  made 
liable  for  a  malicious  prosecution.  The 
question  of  malice  is  always  one  of  intent, 
and  open  to  the  jury  in  this  class  of  cases. 
But  it  is  not  so  in  actions  of  slander. 
The  law  then  implies  malice,  and  will  not 
allow  it  to  be  rebutted  by  general  evidence, 
but  only  by  specific  proof,  which  the  law 
declares  a  justification  or  excuse,  as  the 
truth  of  the  words,  or  that  they  were  spo- 
ken confidentially  and  upon  a  justifiable 
occasion.  So,  too,  in  regard  to  probable 
cause,  the  facts  being  admitted  or  proved 
witliout  controversy,  it  becomes  a  mere 
question  of  law  to  be  determined  by  the 
court.  And  for  this  purpose  the  same 
proof  is  required  in  all  cases.  It  is  not 
enough  to  sliow  that  the  case  appeared 
sufficient  to  this  particular  party,  but  it 
must  be  sufficient  to  induce  a  sober,  sensi- 
ble, and  discreet  person  to  act  upon  it,  or 
it  must  fail  as  a  justification  for  the  pro 
ceeding,  upon  genei'al  grounds. 

"  But  upon  the  question  of  malice  the 
law  is  more  tender  towards  the  inexperi- 
ence or  the  infirmities  or  tlie  idiosyncra- 
sies of  parties.  INIalice  is  judged  of  with 
reference  to  the  party  ;  and  whatever  fairly 
tends  to  show  that  he  acted  with  good 
fi.\ith,  and  without  malice,  must  be  re- 
ceived. 

"  There  is  no  necessary  or  even  natural 
connection  between  probable  cause  and 
the  want  of  malice.  One  may,  and  often 
does,  act  with  malice,  when  there  is  prob- 
able cause,  or  may  act  without  malice 
where  there  is  no  probable  cause  shown, 
but  in  neither  of  these  cases  is  he  liable  to 
this  action.  Want  of  probable  cause  and 
malice  must  concur  to  make  the  party  lia- 
ble. Turner  v.  Ambler,  10  Queen's  Bench, 
252,  Denman,  C.  J. 

"  It  is  true,  the  want  of  probable  cause 
need  not  be  shown  to  extend  to  all  the 
particulars  charged.  Nor  is  it  any  defence 
that  there  was  probable  cause  for  part  of 
the    prosecution.     Ellis   v.   Abrahams,   8 


408 


LAW   OF  EVIDENCE. 


[part  IV. 


BO  found,  establish  probable  cause  or  not.^     But  if  the  matter  of 
fact  and  matter  of  law,  of  which  the  probable  cause  consists,  are 


Queen's  Bench,  709  ;  Reed  v.  Taylor,  4 
Taunt.  615.  But  the  importance  of  the 
questions  in  this  case  will  justify  a  more 
extended  examination  of  the  cases  upon 
the  subject,  and  a  more  minute  discussion 
of  the  principles  involved. 

"  The  history  of  the  common  law  in 
regard  to  this  action  is  well  stated  in  the 
elaborate  note  of  Messrs.  Hare  &  Wallace 
to  Munns  v.  Dupont,  2  Wash.  C.  C.  31- 
34  ;  1  Am.  Lead.  Cases,  200,  The  law  is 
defined  in  Farmer  v.  Darling-,  4  Burrows, 
1971,  1974,  where  all  the  judges  agree, 
that,  to  maintain  the  action,  malice  (either 
express  or  implied)  and  the  want  of  prob- 
able cause  must  concur.  The  case  of 
Johnstone  v.  Sutton,  1  Term,  510,  S.  C, 
1  Term,  493 ;  1  Brown's  P.  C.  7C,  is  also 
a  most  important  and  satisfactory  case 
upon  tliis  subject,  maintaining  the  general 
view  above  stated. 

"  And  it  seems  to  be  admitted  in  all  the 
cases  where  the  question  has  arisen,  that 
proof  of  the  want  of  probable  cause  is  not 
sufficient  alone  to  maintain  the  action,  pro- 
vided the  defendant  can  satisfy  the  jury 
that  in  his  conduct  he  acted  in  good  faith, 
and  without  malice,  which  is  much  the 
same  thing  as  applied  to  this  subject. 
For  although  the  word  '  malice,'  in  popular 
language,  is  often  used  to  indicate  anger 
or  viudictiveness,  in  the  law  it  is  held  to 
import  nothing  more  than  bad  faith,  and, 
as  applied  to  the  subject  of  malicious  pros- 
ecution, the  want  of  sincere  belief  of  the 
plaintiff's  guilt  of  the  crime  for  which  the 
prosecution  was  instituted. 

"  The  difference  tlien  between  proof  of 
probable  cause  and  of  malice  consists 
chiefly  in  this  :  that  probable  cause  has 
reference  to  the  common  standard  of  hu- 
man judgment  and  conduct,  and  malice 
regards  the  mind  and  judgment  of  the 
defendant,  in  the  particular  act  charged, 
as  a  malicious  prosecution. 

"  If  the  defendant  can  show  that  he  had 
probable  cause  for  his  conduct,  that  is, 
that  from  such  information  as  would  in- 
duce a  reasonable  and  prudent  man  to 
believe  the  plaintiff  guilty  of  a  crime,  he 
instituted  the  prosecution,  he  is  not  liable, 
whatever  may  have  been  his  own  personal 
malice  for  setting  it  on  foot.  Probable 
cause,  in  this  sense,  is  a  defence  to  the 
action,  without  regard  to  motive.  To  tiiis 
point,  he  must  show  that  he  was  told  or 
knew  of  the  existence  of  specific  facts, 
which  either  would  constitute  crime,  or 
which,  upon  competent  advice,  he  supposed 


would  constitute  crime.    French  v.  Smith, 
supra. 

"  But  if  the  party  fail  in  showing  such 
ground  of  action  as  would  have  induced 
prudent  and  careful  men  to  have  believed 
in  the  plaintiff's  guilt,  and  to  have  insti- 
tuted the  prosecution,  he  may  nevertheless, 
if  he  choose,  show  that  in  fact  he  did  act 
upon  what  he  at  the  time  regarded  as  good 
cause,  either  from  common  report  or  remote 
circumstances,  such  as  excited  suspicions 
in  his  mind  to  the  extent  of  creating  belief 
of  guilt,  although  short  of  probable  cause. 
"  If  this  were  not  so,  then  want  of  prob- 
able cause  and  malice  would  be  equivalent 
terms,  which  the  cases  show  they  are  not. 
The  only  distinction  which  can  be  sup- 
posed to  exist  in  regard  to  them  is,  that 
one  is  general  and  the  other  is  particular ; 
one  has  reference  to  the  common  standard, 
and  the  other  to  the  mind  and  motive  of 
the  defendant.  But  how  can  that  mind 
be  reached  without  receiving  jjroof  of  every 
fiict  which  existed,  and  which  may  be  pre- 
sumed to  have  influenced  the  conduct  of 
the  defendant?  If  the  subject  were  res 
interira,  I  should  certainly  regard  common 
repute,  both  of  the  plaintift''s  gcnernl  bad 
character,  and  of  his  being  guilty  of  the 
particular  offence,  good  evidence  of  prob- 
able cause.  Upon  principle  it  should  so  be 
held.  But  in  regard  to  common  report 
of  guilt  of  the  particular  offence,  we  are 
not  prepared  to  say  the  decisions  justify  us 
in  regarding  it  as  evidence  of  probable 
cause. 

"  General  reputation  of  guilt,  in  regard 
to  the  particular  offence,  may  be  no  sufS- 
cient  ground,  in  itself  alone,  for  instituting 
proceedings  against  one  in  regard  to  crim- 
inal offences.  But  in  doubtful  cases,  where 
the  testimony  is  conflicting,  and  especially 
where  it  is  expected  to  be  drawn  from 
those  in  the  confidence  or  under  the  influ- 
ence of  the  party  accused,  and  where  con- 
sequently there  is  difiiculty  of  learning  tho 
full  extent  of  testimony  which  can  be  ob- 
tained, until  the  witnesses  are  put  upon 
giving  testimony,  and  where,  of  course,  a 
preliminary  inquiry  is  often  justified  partly 
upon  suspicion,  and  as  an  experiment,  it  is 
no  doubt  undeniable  that  the  general  be- 
lief in  the  guilt  of  the  accused  in  I'egard  to 
the  particular  offence  will  influence  almost 
any  one  in  deciding  upon  the  propriety  of 
instituting  the  prosecution.  It  is  therefore 
upon  principle,  I  think,  admissible  as  part 
of  the  ground  constituting  ]n-obable  cause, 
and  is,  as  we  have  before  said,  in  point  of 


1  Turner  v.  Ambler,  10  Ad.  &  El.  252,  N.  S. 


PART  IV.] 


MALICIOUS   PROSECUTION. 


409 


intimately  blended  together,  the  judge  will  be  warranted  in  leav- 
ing the  question    to  the  jury.^     Thus,  where  the   question  was, 


character  equivalent  to  hearsay,  or  the 
declarations  of  third  persons  in  regard  to 
the  guilt  of  the  plaintiff",  which  seems  to 
be  admitted  everywhere  in  this  class  of 
cases.  French  v.  Smith,  supra ;  Bacon  v. 
Towne,  6  Cush.  217.  In  this  last  case  a 
new  trial  was  awarded,  among  others, 
upon  the  ground  that  testimony  was  re- 
jected at  the  trial,  that  some  tliird  party  in- 
formed a  fourth  party  of  his  knowledge  of 
a  fact  tending  to  show  the  plaintiff"  guilty 
of  the  oft"ence  for  which  he  was  prosecut- 
ed, and  requested  this  to  be  communicated 
to  the  defendant,  which  was  done  before 
the  prosecution  was  instituted.  This 
seems  to  us  quite  as  remote,  and  rather 
Less  reliable,  as  a  ground  of  instituting 
criminal  proceedings,  than  that  of  common 
reputation  and  belief. 

"  But  notwithstanding  the  satisfactory 
basis  upon  which  the  proposition  seems  to 
rest,  that  this  evidence  of  common  reputa- 
tion, in  regard  to  the  particular  offence,  is, 
upon  general  principles,  admissible,  among 
other  things,  to  show  probable  cause  even, 
and  especially  to  rebut  the  inference  of 
malice  in  the  defendant,  the  decisions  do 
not  show  that  such  jiroof  lias  been  received 
or  offered.  This  may  have  resulted  from 
two  reasons :  that  the  same  kind  of  evi- 
dence is  obtainable  by  showing  the  general 
bad  reputation  of  the  plaintiff'  at  the  time 
of  the  prosecution ;  and  also,  that  we  do 
not  always  distinguish  between  the  class 
of  proof  which  is  admissible  in  tliis  action, 
when  the  issue  is  in  regard  to  suspicion 
of  guilt  and  probable  cause  to  believe  one 
guilty,  and  pioof  of  the  very  fact  of  guilt. 
The  general  rule  undoubtedly  is,  that  gen- 
eral reputation  of  guilt  in  regard  to  a  par- 
ticular offence,  is  not  admissible  to  prove 
the  fact  of  guilt,  and  never  unless  it  be 
upon  the  question  of  damages  in  regard  to 
reputation  in  ordinary  actions.  Hence  it 
is  natural  to  throw  this  case  of  actions  for 
malicious  prosecution  into  the  general 
class.  These  two  grounds  may  account 
for  this  kind  of  proof  not  having  been 
oft"ered.  Prudent  counsel  do  not  often 
desire  to  oft'er  testimony  in  one  form  when 
its  admissibility  is  questionable,  if  there  is 
a  safe  ground  upon  which  it  is  clearly  ad- 
missible. It  may  not,  therefore,  be  impor- 
tant to  decide  this  point  here,  since  it  is 
really  involved  in  the  next  point.  But  if 
it  were  necessary,  we  must  certainly  hold 
the  proof  admissiijle. 

"  This  brings  us  to  the  question  of  the 


admissibility  of  evidence  of  the  general  rep- 
utation of  the  plaintiff,  at  the  time  of  insti- 
tuting the  prosecution,  in  reeard  to  wheth- 
er he  would  be  easily  induced  into  the 
commission  of  any  similar  offence,  for  this 
is  the  view  in  which  character  has  any 
proper  bearing  in  regard  to  crime.  If  the 
offence  is  one  of  outrage  and  violence, 
whether  the  accused  is  commonly  reputed 
a  peaceable,  quiet,  and  orderly  behaved  cit- 
izen, or  a  noisy,  boisterous,  and  quarrel- 
some one.  And  if,  on  the  other  hand,  the 
offence  is  one  involving  fraud,  collusion, 
dishonesty,  and  secret  practices,  whether 
the  man  is  of  a  fair,  frank,  honest,  and  out- 
spoken character,  or  the  contrary.  Some 
of  the  cases  go  to  exclude  all  evidence  of 
this  kind.  Newsam  v.  Carr,  2  Stark.  Cases, 
69. 

"But  it  seems  to  us  there  can  be  no 
doubt  that  to  this  extent  it  is  admissible 
upon  the  strictest  principles,  and  for  tlie 
purpose  of  showing  probalile  cause.  It  is 
precisely  that  kind  of  proof  which  the  ac- 
cused might  show  in  his  own  defence,  and 
its  absence  must  weigh  more  or  less  against 
him  in  regard  to  the  very  off'encefor  which 
the  prosecution  was  instituted.  To  say 
then  that  a  prosecutor,  in  calculating  the 
reasonable  and  probable  grounds  of  insti- 
tuting a  prosecution  for  crime,  is  not  to 
take  into  account  one  of  the  very  elements 
of  the  defence,  and,  in  one  event,  of  the 
prosecution  also,  is  simply  absurd.  It  is 
a  proposition  admitting  of  no  question 
whatever,  and  which  could  never  have 
been  made  a  question,  had  its  proper  ap- 
plication to  the  subject,  in  the  view  just 
alluded  to,  been  fully  appreciated.  And 
the  decided  cases,  notwithstanding  some 
exceptional  ones,  fully  sustain  this  view. 
In  the  elaborate  case  of  Bacon  v.  Towne, 
4  Cush.  217,  this  subject  is  discussed  by 
Chief  Justice  Shaw,  and  the  same  conclu- 
sion arrived  at  which  we  here  adopt,  citing 
Rodriquez  v.  Tadmire,  Esp.  721  ;  Wood  v. 
United  States,  6  Pet.  342,  366  ;  2  Grcenl. 
Ev.  §  458.  That  it  is  evidence  to  rebut 
malice  is  beyond  all  doubt,  if  the  party  can 
show  that  he  believed  it. 

"  That  the  English  courts  i-egard  the 
question  of  malice  as  a  distinct  question, 
and  in  issue  in  every  case  of  this  kind  tried 
upon  the  general  issue,  or  which  may 
always  be  put  in  issue  by  the  defendant, 
the  cases  abundantly  prove.  In  Williams 
V.  Taylor,  6  Bing.  183,  Tindal,  C.  J., 
said:  '  What  shall  amount  to  such  a  cam- 


1  McDonald  v.  Eooke,  2  Bing.  N.  C.  217;  2  Scott,  359,  S.  C;  ante,  Vol.  1,  §  49. 
And  see  Taylor  v.  Willans,  2  B.  &  Ad.  845. 


410 


LAW   OF  EVIDENCE. 


[part  IV. 


whether  the  defendant  believed  that  there  was  reasonable  and 
probable  cause  for  preferring  the  indictment,  and  the  judge  left 
this  question  to  the  jury,  who  found  that  tlie  defendant  preferred 
the  indictment  from  improper  motives,  and  the  judge  thereupon 
held  that  there  was  evidence  of  mahce  ;  it  was  adjudged  that  this 
direction  was  right.i  If  the  judge,  upon  the  plaintiff's  evidence, 
is  of  opinion  that  there  was  not  probable  cause  for  the  prosecution, 
but  upon  proof  of  an  additional  fact  by  the  defendant,  by  a  wit- 
ness who  is  not  impeached  or  contradicted,  he  is  of  opinion  that 
there  was  probable  cause,  he  is  not  bound  to  submit  the  evidence 
to  the  jury,  but  may  well  nonsuit  the  plaintiff.^     But  where  the 


bination  of  malice  and  want  of  probable 
cause,  is  so  much  matter  of  fact  in  each 
individual  case  as  to  render  it  impossible 
to  lay  down  any  general  rule  upon  the  sub- 
ject ;  but  there  ought  to  be  enough  to  sat- 
isfy a  reasonable  man  that  the  accuser  had 
no  ground  for  proceeding  but  his  own  de- 
sire to  injure  the  accused.'  In  Mitchell  v. 
Jenkins,  5  B.  &  Ad.  588,  Denman,  C.  J. 
said  :  '  It  is  still  incumbent  upon  the  plain- 
tiff to  allege  and  prove  malice,  as  an  inde- 
pendent fact.  They  [the  jury]  however, are 
to  decide,  as  matter  of  fact,  whether  there 
be  malice  or  not.'  Parke,  J.,  said  the 
defendant  is  excused,  if  '  acting  bona  fide 
under  a  wrong  notion  of  tlie  law,  and  pur- 
suant to  legal  advic*.'  Patterson,  J., 
said,  'and  the  jury  lare  to  decide]  that 
there  is  malice.'  Ancl  in  Mitchell  v.  Wil- 
liams, 11  M.  &  W.  205,  Parke,  B.,  said, 
that  in  the  absence  of  reasonable  or  prob- 
able cause,  '  that  may  tlirow  the  burden 
of  proof  on  the  defendant  that  he  believed 
there  icas.' 

"  The  text  writers  lay  it  down  as  settled 
practice  upon  this  point,  that  the  question 
of  malice  in  the  defendant's  mind  in  doing 
the  act  is  a  distinct  issue  in  the  action,  8nd 
whatever  tends  to  prove  or  disprove  it  is 
competent  to  be  received.  2  Greenl.  Ev. 
§  453. 

"  Under  the  foregoing  rule  of  requiring 
the  distinct  finding  of  the  jury  upon  the 
question  of  malice,  and  granting  a  new 
trial,  because  this  question  was  withdrawn 
from  the  consideration  of  the  jury,  when 
there  was  confessedly  no  just  cause  shown 
fur  instituting  the  prosecution,  as  was  done 
in  Mitchell  t'.  Jenkins,  suprn,  it  seems  to 
us  impossible  to  maintain  that  good  faith 
in  the  defendant  is  not  a  sufficient  justifica- 
tion. It  is  not  always  equivalent  to  prob- 
able cause;  one  may  act  in  good  faith  and 
not  from  any  reasonable  or  probable  cause. 
But  how  one  can  be  said  to  act  from  mal- 
ice in  the  lowest  sense  of  the  term,  and  at 


the  same  time  act  in  good  fiiith,  is  certainly 
not  easy  of  comprehension. 

To  illustrate  the  point  more  fully.  One 
may  have  an  idiosjmcrasy  or  a  delusion, 
whereby  he  believes  in  the  advice  of  his 
minister  or  schoolmaster  upon  legal  mat- 
ters, or  in  the  changes  of  the  moon,  or  the 
flight  of  birds,  in  regard  to  secret  facts  and 
the  hidden  purposes  of  others,  or  in  mes- 
merism, or  spiritualism,  and  by  some  of 
these  means  may  sincerely  believe  he  has 
detected  the  guilt  of  the  plaintiff,  and  the 
mode  of  proving  it,  and  in  all  good  faith 
may  have  acted  upon  this  fallacy  in  insti- 
tuting the  prosecution.  Here  is  certainly 
no  probable  cause  for  the  prosecution.  But 
can  the  party  be  found  guilty  of  instituting 
the  prosecution  from  motives  of  malice  1 
certainly  not,  if  words  are  to  have  their  or- 
dinary signification. 

"  Any  defence  in  actions  of  this  kind, 
based  upon  the  want  of  common  compre 
hension  and  sagacity  in  the  party  ofiTering 
it,  will  not  be  likely  often  to  occur  in  court. 
Men  do  not  like  to  stultify  themselves,  and 
for  a  long  time,  in  the  history  of  the  com- 
mon law  were  not  allowed  to  do  so,  ever 
to  avoid  contracts  made  in  a  state  of  men- 
tal alienation.  But  the  rule  is  now  other- 
wise. And  although  insanity  ordinarily 
is  no  defence  against  actions  for  torts,  it 
must  be,  we  think,  in  regard  to  torts  of  this 
class,  where  the  liability  consists  in  the 
motive  of  the  act.  If  this  view  be  correct, 
it  is  competent  for  the  party  to  show  facts 
which  operated  upon  him,  in  order  to  es- 
tablish good  faith,  even  although  they 
would  not  have  produced  the  same  effect 
upon  all  minds,  or  the  majority  even."] 

1  Wren  v.  Heslop,  12  Jur.  600. 

2  Davis  V.  Hardy,  6  B.  &  C.  225  In 
considering  whether  there  was  probable 
cause  for  an  arrest,  the  judge  will  r.ot  re- 
gard any  expressions  of  general  malice  on 
the  part  of  the  defendant.  Whalley  v. 
Pepper,  7  C.  &  P.  506. 


PART  IV.]  MALICIOUS   PROSECUTION.  411 

prosecution  was  founded  on  a  charge  of  menaces  of  the  prosecutor's 
life,  it  is  not  for  the  judge  alone  to  determine  whether  the  men- 
aces justified  tlie  charge,  but  it  is  for  the  jury  first  to  determine, 
whetlier  the  defendant  believed  them ;  for  his  disbelief  is  material 
to  the  question  of  fact,  as  it  goes  directly  to  the  motive  of  the 
prosecution.^ 

§  455.  What  will  or  will  not  amount  to  probable  cause  will  de- 
pend on  the  circumstances  of  each  particular  case.  If  express 
malice  is  proved,  and  the  cause  of  the  former  proceedings  was  pe- 
culiarly within  the  knowledge  of  the  defendant,  slight  evidence  on 
the  part  of  the  plaintiff  of  the  absence  of  probable  cause  will  be 
deemed  sufficient.^  The  discharge  of  the  plaintiff,  by  the  examin- 
ing magistrate,  is  prima  facie  evidence  of  the  want  of  probable 
cause,  sufficient  to  throw  upon  the  defendant  the  burden  of  prov- 
ing the  contrary .3  But  in  ordinary  cases  it  will  not  be  sufficient 
to  show  that  the  plaintiff  was  acquitted  of  an  indictment  by  reason 
of  the  non-appearance  of  the  defendant,  who  was  the  prosecutor  ;■* 
nor,  that  the  defendant,  after  instituting  a  prosecution,  did  not 
proceed  with  it ;  ^  nor,  that  the  grand  jury  returned  the  bill  "  not 
found."  ^  Nor  will  the  mere  possession  of  goods,  supposed  to  have 
been  stolen,  afford  sufficient  probable  cause  for  prosecuting  the 
possessor,  if  no  inquiry  was  made  of  him,  nor  any  opportunity 
given  him  to  explain  how  his  possession  was  acquired.  And,  on 
the  other  hand,  the  fact  that  the  party's  goods  have  not  been 
stolen,  but  were  accidentally  mislaid,  will  not  alone  establish  the 
want  of  probable  cause  for  prosecuting  one  as  having  stolen  them.^ 
Probable  cause  does  not  depend  on  the  actual  state  of  the  case,  in 

1  Venafra  v.  Johnson,  10  Bing.  301  ;  6  accused  by  the  examining  magistrate  is  not 
C.  &  P.  50,  S.  C. ;  Broad  v.  Ham,  5  Bing.  sufficient  evidence  of  the  want  of  probable 
N.  C.  722  ;'  Foshay  v.  Ferguson,  2  Denio,  cause.  See  Smith  v.  Ege,  52  Penn.  St. 
617.     And  see  Haddricli  v.  Heslop,  12  Ad.  419  ;  contra.] 

&  El.  267,  N.  S.  *  Purcell  v.  Macnamara.l  Campb.  199 ; 

2  Incleiion  v.  Berrv,  1   Campb.  203,  n.     9  East,  361,  S.  C. 

(a);  Bull.  N.  P.  14 ;  "Nicholson  y.  Coghill,  ^  Wallis  v.  Alpine,  1   Campb.  204,  n. 

4  b'.  &   C.  21.     [*But  the  existence  of  And  see  Roberts  w.  Bayles,  1  Sandf.  S.  C. 

malice  is  not  sufficient  to  raise  a  presump-  R.  47. 

tion  of  want  of  probable  canse.     Wade  v.  ^  Byne  v.  Moore,  5  Taunt  187  ;  Iree- 

Waldon,  23  111.  42.5.]  man  v.  Arkell,  2  B.  &  C  494;  3  D.  &  R. 

3  Secor  V.  Babcock,  2  Johns.  203  ;  John-  669,  S.  C.  But  the  prosecutor  may  still 
ston  V.  Marlin,  2  Murphy,  248  ;  Bostick  v.  be  liable  for  slander.  Bull.  N.  P.  13. 
Rutherford,  4  Hawks,  83.  But  see  Stone  [*  Putting  the  costs  in  a  criminal  prosecu- 
V.  Crocker,  24  Pick.  81,  88  ;  Scott  v.  Simp-  tion  on  the  prosecutor  by  the  jury  is  not 
son,  1  Sandf.  S.  C.  R.  601.  [*  See  also  conclusive  of  the  want  of  probable  cause. 
Israel  v.  Brooks,  23  111.  57.5,  where  this  Urich  v.  Neuer,  2  Grant's  Cas.  272.] 
question  is  discussed  by  Breese,  J.,  and  it  "^  Swain  v.  Stafford,  4  Iredell,  392, 
is  decidedly  held  that  the  discharge  of  the  398. 


412  LAW   OF  EVIDENCE.  [PART  IV. 

point  of  fact,  but  upon  the  honest  and  reasonable  belief  of  the  par- 
ty prosecuting.!     It  must  appear  that  the  defendant  knew  of  the 
existence  of  those  facts  which  tended  to  show  reasonable  and  prob- 
able cause,  because,  without  knowing  them,  he  could  not  act  upon 
them ;  and  also  that  he  believed,  that  the  facts  amounted  to  the 
offence  which  he  charged,  because,  otherwise,  he  will  have  made 
them  the  pretext  for  prosecution,  without  even  entertaining  the 
opinion  that  he  had  a  right  to  prosecute.     And  whether  he  did  so 
believe,  or  not,  is  rather  a  fact  to  be  found  by  the  jury,  than  an 
inference  of  law  to  be  made  by  the  judge,  to  whom  only  the  legal 
effect  of  the  facts  is  properly  referred.^     Yet  if  this  belief,  how- 
ever confident  and  strong,  was  induced  by  the  prosecutor's  own 
error,  mistake,  or  negligence,  without  any  occasion  for  suspicion 
given  by  the  party  prosecuted,  it  will  not  amount  to  probable  cause.^ 
§  456.    (3.)  As  to  the  damages.     Whether  the  plaintiff  has  been 
prosecuted  by  indictment,  or  by  civil  proceedings,  the  principle  of 
awarding  damages  is  the  same,  and  he  is  entitled  to  indemnity  for 
the  peril  occasioned  to  him  in  regard  to  his  life  or  liberty,  for  the 
injury  to  his  reputation,  his  feelings,  and  his  person,  and  for  al' 
the  expenses  to  which  he  necessarily  has  been  subjected. ^     And  if 
no  evidence  is  given  of  particular  damages,  yet  the  jury  are  not 
therefore  obliged   to   find   nominal   damages   only.^     Where   the 
prosecution  was  by  suit  at  common  law,  no  damages  will  be  given 
for  the  ordinary  taxable  costs,  if  tliey  were  recovered  in  that  action  ; 
but  if  there  was  a  malicious  arrest,  or  the  suit  was  malicious,  and 
tvithout  probable  cause,  the  extraordinary  costs,  as  between  attor- 

1  James  ».  Phelps,  11  Ad.  &  El.  489  ;  Bacon  v.  Towne,4  Cush.  217.    So  he  may 

Delegal  v.  Ilighlcy,  3  Bing.  N.  C.   950;  prove  for  this  purpose  by  the  maoistrate 

Seibert   v.  Price,  5  Watts  &  Serg.  438;  before  whom  the  prosecution   was   insti- 

Swain  r.  Stafford,  4  Iredell,  389  ;  Plum-  tutcd,  what  the  testimony  before  him  was 

mer  v.  Ghccn,  3  Hawks,  66.     Though  the  on  the  part  of  the  government;  and  it  is 

indictment  were  for  an  assault  and  battery,  not  necessary   for  this  purpose,  that  the 

yet  if  there  were  no  excess  of  force  beyond  witnesses  by  whom  the  testimony  was  giv- 

what'was  necessary  for  the  occasion,  and  en,   or   their  depositions,  should  be  pro- 

the   defendant    preferred    the    indictment  duced  ;  and  if  produced,  and  the  witnesses 

with  a  consciousness  that  he  was  in  the  are  not  able  to  recollect  what  their  testi- 

wrong,  the  prosecution  was  without  prob-  mony  was,  it  may  nevertheless  be  proved 

able  cause.     Hinton  v.  Heather,  14  M.  &  by   the   magistrate.      Ibid.      Goodrich   v. 

W.   131.     [To  shovy  probable  cause  and  Warner,  21  Conn.  432;  Gardner  v.  Ran- 

lebut  the  allegation  of  malice,  the  defend-  dolph,  18  Ala.  68.i.     But  see  Larrence  ». 

aat  may  prove  tliat  a  certain  person  com-  Lanning,  2  Carter  (Ind.)  256.] 

inunicated  to  another,  with  a  request  that  '^  Turner  v.  Ambler,   11  Jur.  346,  pel 

the  latter  would  make  it  known  to  the  de-  Ld.  Denman,  C.  J. 

fondant,  the  fact  that  the  former  saw  the  »  Merriam  v.  Mitchell,  1  Shepl.  439. 

plaintiff  do  the  criminal  act  of  which  he  *  Bull.    N.   P.    13,    14  ;    Thompson  v 

was  accused,  and  that  this  information  was  Mussey,  3  Greenl.  305. 

communicated  to  the  defendant,  before  the  ^  Tripp  v.  Thomas,  3  B.  &  C.  427. 
complaint  against  the  plaintiff  was  made. 


PART  IV.]  MALICIOUS   PROSECUTION.  413 

ney  and  client,  as  well  as  all  other  expenses  necessarily  incurred 
in  defence,  are  to  be  taken  into  the  estimate  of  damages.^  What- 
ever was  admissible  in  evidence  to  defeat  the  original  malicious 
suit  is  admissible  for  the  plaintiff  in  this  action,  to  maintain  his 
right  to  recover  for  the  injury  sustained.^ 

§  457.  The  defence  of  this  action  usually  consists  in  disproving 
the  charge  of  malice,  or  in  showing  the  existence  of  probable  cause 
for  the  prosecution.  And  in  proof  of  probable  cause  for  a  criminal 
prosecution,  it  seems  that  the  testimony  of  the  defendant  himself, 
to  facts  peculiarly  within  his  own  knowledge,  given  upon  the  trial, 
diverso  intuitu,  is  admissible  in  the  action  against  him  for  causing 
that  prosecution .3  But  the  testimony  of  other  witnesses,  given  on 
that  occasion,  cannot  be  proved  but  by  the  witnesses  themselves, 
or,  if  they  are  dead,  by  the  usual  secondary  evidence.*  Probable 
cause  may  also  be  proved  by  evidence  that  the  acquittal  of  the 
plaintiff,  in  the  suit  or  prosecution  against  him,  was  tlie  result  of 
deliberation  by  the  jury,  the  testimony  having  been  sufficient  to 
induce  them  to  pause  ;  °  or,  that  he  had  been  convicted  of  the 
offence  before  a  justice  of  the  peace,  who  had  jurisdiction  of  the 
case,  thougli  he  was  afterwards  acquitted  on  an  appeal  from  the 
sentence.*^  If  the  original  suit  was  for  the  recovery  of  money 
claimed  as  a  debt,  and  the  defendant,  submitting  to  the  demand, 
obtains  a  suppression  of  the  process  by  the  payment  of  part  of  the 

1  Sandhack  v.  Thomas,  1  Stark.  .306;  nionwealth  i'.  Davis,  11  Pick.  433,  438 
Gould  V.  Earratt,  2  M.  &  Rob.  171.  And  Such  conviction  is  conclusive  evidence  of 
see  Doe  r.  Davis,  1  Esp.  358  ;  Nowell  v.  probable  cause,  unless  it  was  obtained 
Roake,  7  B.  &  C.  404.  In  Sinclair  v.  El-  chiefly  or  wholly  by  the  false  testimony  of 
dred,  4  Taunt.  7,  it  was  decided  that  the  the  defendant.  Witham  v.  Gowan,  2 
extra  costs  of  defence  could  not  be  recov-  Shcpl.  362 ;  Payson  v.  Caswell,  9  Shopl. 
ered,  unless  there  had  been  amalicious  ar-  212;  [Ulmcr  v.  Leland,  1  Greenl.  R.  135; 
rest  of  the  person ;  and  Best,  C.  J.,  in  Reynolds  v.  Kennedy,  1  Wils.  232  ;  Good- 
Webber  r.  Nicholas,  Ry.  &  M.  417,  reluc-  rich  v.  Warner,  21  Conn.  432.  And  if 
tantly  felt  himself  bound  by  this  decision ;  there  was  an  acquittal  before  the  mag-is- 
but  said  he  thought  Ld.  Ellenborough's  trate,  if  he  had  no  jurisdieticn  of  the  of- 
opinion,  in  Sandback  v.  Thomas,  the  cor-  fence,  the  action  for  malicious  ])rosecution 
rect  one.  cannot  be  maintained.    Bixby  r.  Brundige, 

2  Hadden  v.  Mills,  4  C.  &  P.  486.  2  Grav,   129;  Bacon  v.  Towne,  4  Cush. 

3  Sec  ante,  Yo\.  1,§352;  Bull.  N.  P.  14.  217.  But  see  Morris  v.  Scott,  21  Wend. 
Or,  the  evidence  of  his  wife.  Johnson  v.  281;  Stone  v.  Stevens,  12  Conn.  219; 
Browning,  6  Mod.  216.  And  sec  Burlin-  Hays  v.  Younglove,  7  B.  Mon.  .54,'). 
game  v.  Bmlingame,  8  Cowen,  141  ;  Jack-  A  verdict  of  guilty  in  a  criminal  prose- 
son  V.  Bull,  2  M.  &  Rob.  176;  Scott  v.  cution,  founded  upon  correct  legal  instruc- 
Wilson,  Cooke,  31.5;  Moodey  v.  Pender,  tions,  is  conclusive  evidence  of  probable 
2  Hayw.  29  ;  Guerrant  v.  Tinder,  Gilmer,  cause  in  a  subsequent  action  for  malicious 
36  ;  Watt  v.  Greenlee,  2  Murphy,  246.  prosecution,  although  such  verdict  was  set 

*  Burt  V.  Place,  4  Wend.  591.  aside  for  newly  discovered  evidence,  and  a 

6  Smith  V.  Macdonald,  3  Esp.  7  ;  Grant  nolle  prosequi   finally  entered.     Parker  v. 

V.  Duel,  3  Rob.  Louis.  R.  17.  Farley,  10  Cush.  279 ;  Parker  v.  Hunting- 

6  Whitnev  v.  Peckhara,  15  Mass.  243;  ton,  2  Gray,  125.] 

Griffis  V.  Sellers,  2  Dev.  &  Bat.  492  ;  Com- 


414  LAW   OF  EVIDENCE.  [PART  IV. 

sum  demanded,  this,  under  ordinary  circumstances,  is  a  conclusive 
admission  of  the  existence  of  a  probable  cause  for  the  suit.^ 

§  458.  Ordinarily,  the  character  of  the  plaintiff  is  not  in  issue 
in  this  action.  But  in  one  case  where  the  charge  against  him  was 
for  larceny,  the  defendant  was  allowed,  in  addition  to  the  circum- 
stances of  suspicion,  wliich  were  sufficient  to  justify  his  taking  the 
plaintiff  into  custody,  to  prove  that  he  was  a  man  of  notoriously 
bad  character.2  Circumstances  of  suspicion  are  also  admissible  in 
evidence,  in  mitigation  of  damages.^ 

§  459.  How  far  the  advice  of  counsel  may  go  to  establish  the 
fact  of  probable  cause  for  the  prosecution  is  a  point  upon  which 
there  has  been  some  diversity  of  opinion.  It  is  agreed,  that  if  a 
full  and  correct  statement  of  the  case  has  been  submitted  to  legal 
counsel,  the  advice  thereupon  given  furnishes  sufficient  probable 
cause  for  proceeding  accordingly.*  But  whether  the  party's  omis- 
sion to  state  to  his  counsel  a  fact,  well  known,  but  honestly  sup- 
posed not  to  be  material,  or  his  omission,  through  ignorance,  to 
state  a  material  fact  which  actually  existed,  will  render  the  advice 
of  counsel  unavailable  to  him  as  evidence  of  probable  cause,  does 
not  appear  to  have  been  expressly  decided.^     The  rule,  however, 

1  Savage  v.  Brewer,  16  Pick.  453.  he  was   arrested,  rebuts  the  inference  of 

^  Rodrigues  v.   Tadmire,   2    Esp.  721.  malice,  thougli  the  belief  was  based  upon 

And  see  12  Rep.  92;    2  Inst.  51,  52;  2  an  error  in  the  law.     Cecil  v.  Clarke,  17 

Phil.  Evid.  258.     In  Newsara  v.  Carr,  2  Md.  508.     The  declarations  of  one   who 

Stark.  69,  upon  the  question  being  put  to  assisted  the  plaintiff  in  the  taking  made 

one  of  the  witnesses,  whether  he  had  not  at  the  taking,  and  tending  to  persuade  de 

searched  the  plaintiff's  house  on  a  former  fendant  that  plaintiff  acted  without  right 

occasion,  and  whether  he  was  not  a  person  are  competent  evidence.     lb.] 

of  suspicious  character,  it  was  objected  to  ;  *  Hewlett  v.   Cruchley,   5  Taunt.   277. 

but  it  is  said,  that  "  Wood,  B.,  overruled  And   see    Snow  v.  Allen,    1    Stark.  502 ; 

the  objection " ;    though  the  observations  Ravenga  v.  Mcintosh,   2    B.  &  C.    693 ; 

attributed  to  him  by  the  reporter  seem  to  [Walter   v.    Sample,  25    Penn.    State    R. 

show  that  in  his  opinion  the  question  was  275  ;     Leaird    v.    Davis,    17    Ala.    27.] 

improper.    [Bacon  y.  Towne,  4  Cush.  240  ;  [*  That  the  defendant  acted  under  advice 

Martin  v.  Ilardesty,  27  Ala.  458.]     [*  In  of  counsel  cannot  avail,  unless  there  was  a 

Israel  v.  Brooks,  23  111.  575,  and  Wade  v.  full  statement  of  all  the  facts  to  the  ad- 

Walden,  23  111.,  425,  it  is  held  that  previous  vising  cotmsel,  nor  unless  the  arrest  was 

good  or  bad  character  oftheplaintifi',  known  made  in  consequence  of  such  advice,  and 

to  the  defendant,  is  competent  evidence  on  not  in  pursuance  of  a  previous  fixed  de- 

the  question  of  probable  cause.]  termination  to  make  such  arrest.     Ross  v. 

3  Hitchcock  V.  North,  5  Rob.  Louis.  R.  Innis,  26  111.  259.] 

328.     [It  is  not  competent  for  the  defend-  ^  In   Thompson   v.  Mussey,  3    Greenl. 

ant,  for  the  purpose  of  proving  probable  305,  310,  the  defendant  had  prosecuted  the 

cause,  to  show  that  the  accused  (i.  e.  the  plaintiff  for  misconduct  as  an  assessor,  m 

plaintiff  in  the  action  for  malicious  prose-  not  giving  public  notice,   in   the   ivmrmit 

cation)  was  generally  suspected,  or  gen-  calling  a  town  meeting,  of  the  time  and 

crally  believed  guilty  of  the  crime  charged,  place  of  the  meeting  of  the  assessors,  to 

Braincrd   v.   Brackett,    33   Maine,    580.]  receive  evidence  of  the  qualifications  of 

[*  The  belief  of  the  defendant  and  the  neigh-  voters  whose  names  were  not  on  the  public 

bors  generally,  that  the   plaintitf  had  no  list.     The  county  attoiney  had  advised  the 

title  to  the  property  for  the  taking  of  which  defendant,  that  the  notice  was  required  by 


PART  IV.]  MALICIOUS  PROSECUTION.  416 

as  recognized  in  a  recent  American  case,  seems  broad  enough  to 
protect  any  party,  acting  in  good  faith,  and  without  gross  negli- 
gence. For  it  is  laid  down,  that  if  the  party  "  did  not  tvithhold 
any  information  from  his  counsel,  with  the  intent  to  procure  an 
opinion  that  might  operate  to  shelter  and  protect  him  against  a 
suit,  but  on  the  contrary,  if  he,  being  doubtful  of  his  legal  rights, 
consulted  learned  counsel  with  a  view  to  ascertain  them,  and 
afterwards  pursued  the  course  pointed  out  by  his  legal  adviser,  he 
is  not  liable  to  this  action,  notwithstanding  his  counsel  may  have 
mistaken  the  law."^ 

law  to  be  inserted  in  the  warrant ;  but  in  whether    any    material    fact     had    been 

this  case  it  was  contained  in  a  separate  pa-  omitted.      See   ace.    Hall    v.    Suydam,  6 

per,  posted  up  by  the  side  of  the  warrant ;  Barb.  S.  C.  R.  83  ;  Thompson  v.  Mussey, 

but  this  fact,  though  known  to  the  defend-  3  Greenl.  310.     See  also  Bhmt  v.  Little,  3 

ant,   he  did  not  state   to  the  grand  jury.  Mason,  102  ;  Commonwealth  v.  Bradford, 

And  the  court  seemed  to  think,  that  if  this  9    Met.    268.     If  any  raateruil  fact  were 

omission   had   not  been   intentional    and  culpably  withheld  from  the  counsel,  or  it  a 

fraudulent,  the  opinion  of  the  countv  attor-  contrary  opinion  were  given  by  another  of 

nev  would  have  furnished  probable  cause  his  legal    advisers,   or  if  the  prosecution 

for  tlic  prosecution.  were  malicious,  it  is  held  that  the  advice  ot 

1  Stone  V.  Swift,  4  Pick.  393.     In  this  counsel   will   not  be  a  sufficient  defence. 

caae,  however,    no    question    was    made  Stevens  v.  Fassett,  14  Shepl.  266. 


416  LAW   OF  EVIDENCE.  [P ART  IV 


MARRIAGE. 

[*  §  460.  Marriage  a  ci-vil  contract  jure  gentium.     Consent  of  parties  able  to  contract 
all  that  is  required  by  natural  or  public  law. 

461.  Direct  evidence  necessary  in  proof  of  marriage  upon  the  trial  of  indictments 

for  polygamy  and  adultery,  and  in  actions  for  criminal  conversation.     In 
other  cases,  any  other  satisfactory  evidence  sufficient. 

462.  Marriage  may  be  proved  in  civil  cases,  other  than  for  seduction,  by  reputation, 

declarations,  and  conduct  of  the  parties,  and  other  circumstances  usually  ac- 
companying that  relation. 

463.  Written  contracts  of  marriage  admissible  in  evidence  as  tending  to  raise  a 

presumption  that  the  contemplated  marriage  took  place.     Marriage  certifi- 
cates admissible  as  collateral  proof. 

464.  Circumstances  rebutting  evidence  of  marriage.] 

§  460.  Marriage  is  a  civil  contract, /r^re  gentium.,  to  the  validi- 
ty of  which  the  consent  of  parties,  able  to  contract,  is  all  that  is  re- 
quired by  natural  or  public  law.^  If  the  contract  is  made  per 
verba  de  prcesenti,  though  it  is  not  consummated  by  cohabitation, 
or,  if  it  be  made  per  verba  de  futuro,  and  be  followed  by  consum- 
mation, it  amounts  to  a  valid  marriage,  in  the  absence  of  all  civil 
regulations  to  the  contrary .^     And  though  in  most,  if  not  all,  the 

1  ["By  the  common  law,  both  in  Eng-  the  wclfore  of  the  individual  and  a  class,  to 

land  ami  in  this  country,  the  age  of  con-  the  general  interests  of  society  ;  and  seeks, 

sent  is  fixed  at  twelve  in  females  and  four-  in  the  exercise  of  a  wise  and  sound  policy, 

teen    in    males.      Contracts  of   marriage  to  chasten  and  refine  this  intercourse,  and 

between  infants,  being  both  of  the  age  of  to  guard  against  the  manifold  evils  which 

consent,  if  executed,  are  as  binding  as  if  would    result    from     illicit    cohabitation, 

made  by  adults.     Co.  Lit.  79  h;  Eeeve's  With  this  view,  in  order  to  prevent  fraudu- 

T)om.  Eel.  2.3fi,  2,37  ;  20  Am.  Jur.  27.5;  2  lent  marriages,  seduction,  and  illegitimncy, 

Kent,  Comm.  (Gth  edit.)  78;  Pool  r.  Pratt,  the  common  law  has  fixed  tliat  period  in 

1  Chip.  2."j4  ;  Tlio  Governor  v.  Rector,  10  life  when  the  sexual  passions  are  usually 

Humph.  GI.    This  rule,  originally  engraft-  first  developed,   as  the  one  when   infiints 

ed  into  the  common  from  the  civil  law  (1  are  deemed  to  be  of  the  age  of  consent, 

Bl.  Comm.  436  ;  Macph.  on  Inf  168,  169),  and  capable  of  entering  into  the  contract 

is  undoubtedly  an  exception  to  the  general  of  marriage.     By   Bigelow,  J.     Parton  v. 

princij)lcs  regulating  the  contracts  of  in-  Hervey,  1   Gray,  I'jl  ;  Bennett  v.  Smith, 

fants,  and  might  at  first  seem   to  disregard  21   Barb.  (N.  Y.)  439;   Governor  v.  Rec- 

the  lu-otection  and  restraint  with  which  the  tor,  10  Humph.  .57  ;  Godwin  v.  Thompson, 

law  seeks  to  surround  and  guard  the  inex-  2  Greene    (Iowa),  329.     See   Shafher   v. 

perience  ami  imprudence  of  infancy.     But  State,  20  Ohio,  1.] 

in  regidiiting  the  intercourse  of  the  sexes,  ^  2  Kent,  Comm.  p.  87  ;  Fcnton  v.  Reed, 

by  giving  its  highest  sanctions  to  the  con-  4  Johns.  52  ;  Jarkson  v.  Winne,  7  Wend, 

tract  of  marriage,  and  renderiu};  it,  as  far  47  ;  [Hallct  v.  Collins,  10  How.  (U.  S.) 

as  possible,  inviolable,  the  law  looks  beyond  174;  Clayton  r.  Wardell,  4  Comst.  230; 


PART  IV  ] 


MARRIAGE. 


417 


United  States  there  are  statutes  regulating  the  celebration  of  the 
marriage  rites,  and  inflicting  penalties  on  all  who  disobey  the  reg- 
ulations, yet  it  is  generally  considered  that,  in  the  absence  of  any 
positive  statute,  declaring  that  all  marriages,  not  celebrated  in  the 
prescribed  manner,  shall  be  absolutely  void,  or  that  none  but  cer- 
tain magistrates  or  ministers  shall  solemnize  a  marriage,  any  mar- 
riage, regi-ilarly  made  according  to  the  common  law,  without  ob- 
serving the  statute  regulations,  would  still  be  a  valid  marriage. ^ 


Graham  v.  Bennett,  2  Cal.  503;  Bishop 
on  Mar.  &  Div.  book  ii.  eh.  3,  §§  29  -  45  ; 
book  iii.  ch.  8,  §§  152-175.] 

1  2  Kent,  Comm.  pp.  90,  91  ;  Reeve's 
Dom.  Kel.  pp.  196,  200,  290 ;  Milford  v. 
Worcester,    7   Mass.   55,    56 ;  [Parton    v. 
Hervey,    1    Gray,    119;]  Londonderry   v. 
Chester,  2  N.  Hamp.  268;  Cheseldine  v. 
Brewer,  1    Har.  &  McH.    152  ;  Hantz  v. 
Scalcy,  6  Binn.  405.     It  has  more  recently 
been  iield  in  En<;land,  by  Dr.  Lushington, 
that  prohibitory  words,  in  a  mairiaffe  act, 
will  not  authorize  an  inference  of  nullity  of 
the  marriage,  unless  the  nullity  was  de- 
clared in  the  act.     Catterall  v.  Sweetman, 
1    Hob.   Eccl.  R.   304.     In   a  subsequent 
cause  between   the   same  persons,  it  ap- 
peared tliat  they  had  been  married  in  New 
South  Wales,  by  a  minister  of  the  Scotch 
Presbyterian    Church,    according    to  the 
forms'of  the  statute  provided  for  members 
of  that  church  alone,  in  that  colony  ;  but 
that  neither  of  the  parties  belonged  to  that 
church,  and  so  were  not  within  the  terms 
of    the    statute.     But    the    same  learned 
judge  licld  that  the  marriage,  nevertheless, 
was  sufficiently  valid,  as  between  the  par- 
ties, to  found  thereon  a  decree  of  divorce 
for  a  violation  of  the  marriage  vow.     His 
observations  on  this  delicate  question  were 
as  follows  :  "  The  question  which  I  have 
to  decide  on  the  present  occasion  is,  Avlieth- 
er  the  marriage  which  has  taken  place  be- 
tween these  parties  is  a  sufficient  marriage 
to  enalilc  the  court  to  pronounce  a  sentence 
of  separation  by  reason  of  adultery,  which 
it  is  admitted  on  all  hands  has  been  com- 
mitted  by   the  wife.     It  is  true,  that  the 
allegation  given  in  the  case  commences  by 
pleading  the  local  act  of  the  Legislature  of 
New  South  Wales,  from  which  it  would 
appear  to  follow,  that  it  was  intended  to 
plead  that  the  marriage  was  held  in  pursu- 
ance of  the  local  act.     Whether  that  is  so 
or  not,  if  the  court  is  satisfied  that  the  mar- 
riage is  sufficiently  valid  to  enable  it  to 
pronounce  for  a  separation,  it  will  not  be 
necessary  to  enter  into  a  consideration  of 
this  act     I  shall  not  give  ray  judgment  at 
length  for  this  obvious  reason  :  when  the 
case  came  for  my  consideration  in  July, 
VOL.  II.  27 


1845  (Jur.  950  ;  1  Rob.  304),  I  then  stated, 
after  great  consideration,  all  the  reasons 
that  occurred  to  me  to  bring  my  mind  to 
the  conclusion  that  the  marriage  in  ques- 
tion was  not  void.     Now,  if  1  could  not 
pronounce  that  the  marri.ige  in  question 
was  void,  it  seems  to  me  that  I  must  pro- 
nounce it  valid  for  certain  purposes ;  and 
if  valid  for  certain  purposes,  valid  for  the 
husband  or  the  wife,  as  the  case  might  be, 
to  obtain  a  separation  for  a  violation  of  the 
marriage  vow.     How  does  the  case  stand  1 
New  South  Wales  is  a  colony  of  Great 
Britain,  amenable,  according  to  all  the  au- 
thorities, to  all  those  acts  of  Parliament, 
and  all  that  law,  which  belonged  to   the 
mother-country,  and  which  were  considered 
to   be   applicable   to   a  new   colony.     No 
doubt  very  great  difficulties  have  from  time 
to  time  arisen,  both  as  to  wliat  common 
law  and  what  acts  of  Parliament  should 
be  imported  into  a  colony-     But  it  is  un- 
necessary to  discuss  this  question,  because 
it  has  been  discussed  over  and  over  again 
by  more  able  judges  than  myself.     And 
there  can  be  no  doubt  that  the  ancient  law 
of  Great  Britain  must  have  been  carried  to 
this   colony,    because    Lord    Hardwicke's 
Act,  being  expie-sly  confined  to  England 
and  Wales,  could  not  be  imported  to  a  col- 
ony ;  and  consequently,  the  law  that  ex- 
isted in  New  South  Wales  was  the  original 
law  of  England,  as  it  existed  before  Lord 
Hard\\'icke's   Act.     Upon    that  has   been 
engrafted,  under  the  authority  of  an  act  of 
Parliament,  this  act  of  the   local  Le^^i-;- 
lature.     I  have  already  determined,  and  I 
shall  not  repeat  my  reasons,  that,  whatever 
may  be  the  effect  "of  the  local  act,  it  does 
not  render  the  marriage  invalid ;  then  the 
simple  question  is,  if  the  local  act  does  not 
render  it  invalid,   whether,  according   to 
the  ancient  law  of  England,  a  marrinye 
before    a  Presbyterian  minister   is   valid, 
and  valid  only  to  the  extent  upon  which  I 
am   required '  to   pronounce    an    opinion, 
namely,  to  pronounce  a  separation  «  men- 
su  et  ihoro.     When  I  consider  how  much 
that  was  discussed  in  the  celebrated  case 
of  The  Queen  v.   Millis   (10   CI.  &  Fin. 
534),  when  all  the  authorities  that  could 


418 


LAW   OP  EVIDENCE. 


[pari  IV. 


A  marriage,  celebrated  in  any  country  according  to  its  own  laws, 
is  recognized  and  valid  in  every  other  country  whose  laws  or  poli- 
cy it  may  not  contravene  ;  ^  but  the  converse  of  this  rule  is  not 
universally  true.^ 


be  adduced  were  brought  to  bear  in  the 
opinions  of  the  learned  judges  on  that  oc- 
casion, I  am  justified  in  saying  this  ;  there 
was  nothing  fell  from  any  one  of  the 
judges  in  the  House  of  Lords  —  I  am  not 
speaking  of  the  opinion  of  the  common- 
law  judges,  but  of  tlie  law  lords  —  which 
in  any  way  intimated  that  the  marriage 
would  not  be  suificient  to  enable  the  court 
to  proceed  to  a  separation  a  mensa  et  thoro. 
I  am  not  disposed  to  make  the  decision 
of  The  Queen  v.  Millis  any  authority 
further  than  it  goes,  and  for  two  rea- 
sons :  first,  the  law  lords  were  divided, 
and  it  was  only  in  consequence  of  the 
form  in  which  the  case  came  before  them, 
that  it  could  be  considered  a  judgment  at 
all.  In  the  next  place,  and  for  a  reason 
equally  strong,  that,  throughout  the  whole 
of  our  colonies,  at  various  times  and  vari- 
ous places,  if  I  were  to  hold  that  the  pres- 
ence of  a  priest  in  the  orders  of  tlie  Church 
of  England  was  necessary  to  the  validity 
of  a  marriage,  I  should  be  going  the  length 
of  depriving  thousands  of  married  couples 
of  a  right  to  resort  to  this  court  for  such 
benefit  as  it  can  give  m  cases  of  adultery 
or  cruelty.  It  is  notorious  that,  till  within 
a  few  years,  there  were  no  chaplains  be- 
longing to  the  East  India  Company  ;  and 
if  I  were  to  adopt  another  principle,  the 
result  would  be  this  :  that,  as  to  all  those 
marriages  had  by  the  collectors  in  the  ser- 
vice of  the  East  India  Company,  and  had 
by  judges  when  no  priest  was  procured,  I 
should  be  entering  into  this  disquisition,  a 
disquisition  impossible  to  follow,  namely, 
whether  there  was  a  marriage  ex  necessitate, 
because  no  clergyman  was  to  be  found. 
Now,  until  I  am  controlled  by  a  superior 
authority,  I  unquestionably,  in  this  case, 
and  in  all  others,  wherever  I  find,  in  any 
of  the  colonies,  no  local  law  prohibiting  a 
marriage  of  tliis  description,  and  no  act  of 
Parliament  reaches  it,  —  in  all  these  cases 
I  shall  look  at  the  marriage  according  to 
the  ancient  canon  law ;  and  where  it  has 
been  had,  not  before  a  clergyman,  but 
consent  is  had  de facto,  I  shall  hold  that 
sufficient  to  enable  the  court  to  pronounce 
a  decree,  when  it  is  necessary  to  pronounce 
one.  I  have  no  right  to  postpone  my  de- 
cision and  give  a  more  deliberate  judgment, 
because  I  do  not  know  that  any  time  I 
could  give  would  throw  light  on  the  ques- 
tion beyortd  what  is  to  be  collected  from 
former  decisions  ;  and  I  am  certain  that 
no  examination  into  the  cases  will  induce 


me  to  change  my  opinion  until  I  am  over- 
ruled by  an  authority  superior  to  mine." 
See  Catterall  v.  Catterall,  11  Jur.  914; 
[Duncan  v.  Cannan,  23  Eng.  Law  &  Eq. 
288.] 

^  Schrimshire  v.  Schrimshire,  2  Hagg. 
Consist.  R.  407,  419;  2  Kent,  Comm.  91, 
92.  The  exceptions  to  the  generality  of 
the  rule,  that  the  lex  loci  governs  the  con- 
tract of  marriage,  are  of  three  classes  :  (1.) 
in  cases  of  incest  and  polygamy ;  (2.)  when 
prohibited  by  positive  law;  (3.)  when  cel- 
ebrated in  desert  or  barbarous  countries, 
according  to  the  law  of  the  domicile.  Sto- 
ry, Confl.  Laws,  ?§  114-119;  [Bishop  on 
Mar.  &Div.  §§  124-151.] 

^  Per.  Ld.  Stowcll,  2  Hagg.  Consist.  R. 
390,  391  ;  Story,  Confl  Laws,  §§  119-121 ; 
[Bisliop  on  Mar.  &  Div.  §§  1 24  -  1 51 .]  It 
j)arties  go  abroad  for  the  purpose  of  con- 
tracting in  a  foreign  state  a  marriage 
which  could  not  have  been  contracted  in 
their  o^vn  country,  but  is  not  in  violation 
of  good  morals,  it  seems,  that  it  is  to  be 
held  valid,  if  not  made  invalid  by  express 
statute.  Medway  v.  Needham,  16  Mass. 
157;  Putnam  v.  Putnam,  8  Pick.  433; 
Bull.  N.  P.  113,  114  ;  Phillips  v.  Hunter, 
2  H.  Bl.  412;  Story,  Confl.  Laws,  §§  123, 
a,  h,  124.  [A  marriage  in  Massachusetts 
by  a  woman  previously  married  in  another 
State,  and  there  divorced  for  acts  of  hers 
which  would  not  be  a  cause  of  divorce  in 
Massachusetts,  is  valid  in  Massachusetts, 
though  contracted  while  lier  former  hus- 
band is  still  living.  Clark  v.  Clark,  8 
Cush.  385.  lu  giving  the  opinion  of  the 
court,  Shaw,  C.  J.,  said  :  "  Marriage  origi- 
nates in  a  contract,  and  whether  the  con- 
tract be  valid  or  not  depends,  prima  facie, 
upon  the  law  of  the  place  where  the  con- 
tract is  entered  into.  But  marriage,  where 
lawfully  contracted  and  valid,  establishes  a 
relation  between  the  parties,  universally 
recognized  in  all  civilized  and  Christian 
communities,  from  which  certain  rights, 
duties,  and  obligations  are  derived ;  these 
rights  and  duties  attach  to  the  persons  of 
the  parties,  as  husband  and  wife,  and  fol- 
low them  when  they  change  their  domicile 
from  one  jurisdiction  to  another.  Among 
these  rights  is  that  of  seeking  the  dissolu- 
tion of  the  conjugal  relation  in  tlie  manner 
and  for  the  causes  allowed  by  the  law  of 
the  place  where  they  have  bona  fide  and 
without  any  sinister  purpose  taken  up  their 
domicile;  and  the  tribunals  of  such  gov- 
ernment, acting  in  conformity  to  its  laws. 


PART  IV.]  MAERIAGE.  419 

§  461.  The  proof  of .  marriagej  as  of  other  issues,  is  either  by  di- 
rect evidence,  establishing  the  fact,  or  by  evidence  of  collateral 
facts  and  circumstances,  from  which  its  existence  may  be  inferred. 
Evidence  of  the  former  kind,  or  what  is  equivalent  to  it,  is  re- 
quired upon  the  trial  of  indictments  for  polygamy  and  adultery, 
and  in  actions  for  criminal  conversation.^  It  being  necessary,  in 
such  cases,  to  prove  a  marriage  valid  in  all  respects.  It  is  not  suf- 
ficient to  prove  that  the  parties  went  through  a  religious  ceremo- 
ny purporting  to  be  a  marriage,  unless  it  is  also  shown  that  it  was 
recognized  by  the  law  of  the  country  as  the  form  of  contracting  a 
valid  marriage.2  But  in  all  other  cases,  any  other  satisfactory  evi- 
dence is  sufficient.  The  affirmative  sentence  of  a  court  having 
jurisdiction  of  the  question  of  marriage  or  no  marriage  is  conclu- 
sive evidence  of  the  marriage.^  Other  direct  proof  is  made  either 
by  the  testimony  of  a  witness  present  at  the  celebration,  or  of 
either  of  the  parties  themselves,  where  they  are  competent ;  or  by 
an  examined  or  certified  copy  of  the  register  of  the  marriage, 
where  such  registration  is  required  by  law,  with  proof  of  the  iden- 
tity of  the  parties.^  It  is  not  necessary,  in  other  cases,  to  prove 
any  license,  publication  of  banns,  or  compliance  with  any  other 
statute  formality,  unless  the  statute  expressly  requires  it  as  pre- 
liminary evidence.^ 

have  jurisdiction  of  the  persons  of  the  par-  R.  159  ;  Alsleger  v.  Erb,  2  Am.  Law  J. 

ties  and  of  the  subject-matter  of  the  com-  49,  N.  S.     But  see,  contra,   1  he  Feop^  v. 

plaint,  which  is  their  conjugal  relation,  and  Miller,  7  Johns.  314  ;  The  State  v.  Kos- 

tlieir  duties  in  it;  and  therefore  a  decree  well,  6  Conn.  446.     In  Massachusetts,  in  all 

of  divorce  there  pronounced,  in  due  course  cases  where  the  foct  of  marriage  is  required 

of  law,  must  be  regarded  as  valid  to  effect  or  offered  to  be  proved,  evidence  of  general 

the  dissolution  of  the  bond  of  matrimony  repute,  or  of  cohabitation  as  married  per- 

every where.     Barber  v.    Root,    10   Mass.  sons  and  any  circumstantial  or  presump- 

260."      See  True  v.  Ranney,  1  Foster  (N.  tive  evidence  from  which  the  fact  may  be 

H.),  52;  Harrison   v.   Harrison,   20   Ala.  inferred,   shall  be  competent  evidence  for 

629*;  Commonwealth  v.  Hunt,  4  Cush.  50.]  consideration.     Stat.    1840,   ch.  84  ;  Stat. 

1  Morris  v.  Miller,  4  Burr.  2059  ;  Lead-  1841,  ch.  20.     Kiiower  v.  Wesson,  13  Met. 

er  V.  Barry,  1  Esp.  353  ;  Commonwealth  v.  143  ;  [Clayton  v.  Wardell,  4  Comst.  23a] 
Norcross,  9  Mass.  492 ;  Commonwealtli  v.        ^  Cutherwood  v.  Caslon,  13   M.  &  W. 

Littleiohn,   15  Mass.  163;  The  People  v.  261 ;  The  State  w.Hodgskins,  1  Applet.  15o. 
Humphrey,  7  Johns.  314.     On  the  trial  of        ^  Ante,  Vol.  1,  §§  484,  493,  544,  545. 
an   indictment  for  polyiramy  or  adultery,         *  Ibid.     See,  as  to  proof  by  tiie  parties 

the  prisoner's  deliberatc\leclaration  that  ho  themselves,  Cowp.  593  ;  Lomax  ;;.  Loinax, 

was  married  to  the  alleged  wife  is  admissi-  Cas.    temp.    Hardw.  380  ;  Hubback,  Lvi- 

ble  as  sufficient  evidence  of  the  marriage,  dence  of  Succession,  pp.    241,   242,   -44; 

Regina  v.    Upton,    1   C.   &  Kir.  165,    n.  Standen   v.    Standen,   Peake  s    Cas.   S^; 

Especially  if  the  marriage  was  in  another  [Maxwell  v  Chapman,  8  Barb.  Sup.  Ot. 

country.     Reginald.  Simmonsto,  Id.   164;  R.    579.      The    rule    of  l^w     Omnia  rite 

Regina  v.  Newton,  2  M.  &  Rob.  503  ;  Cay-  acta  prasumuntur,  applies  with  particular 

ford's  Case,  7  Greenl.  57  ;  Truman's  case,  force  to  cases  of  presumption  in  tavor  ot 

1    East,  P.   C.  470.     So  in  an  action  for  marriage    and    legitimacy.      Harnson   y. 

criminal  conversation.     Rigg  v.   Curgen-  Southampton,  21  Eng.  Law  &  Bq.  K.  34J  ; 

ven,  2  Wils.  399,  citing  Morris  v.  Miller,  4  Ward  v.  Dulaney,  23  Miss.  41  O.J 
Burr.  2057 ;  Forney  v.  Hallacher,  8  S.  &        ^  Hubback,  Evid.  of  Succession,  p.  239. 


420  LAW   OF  EVroENCE.  [PART  IV. 

§  462.  Marriage  may  also  be  proved,  in,  civil  cases,  other  than 
actions  for  seduction,  by  reputation,  declarations,  and  conduct  of 
the  parties,  and  other  circumstances  usually  accompanying  that 
relation.  The  nature  and  admissibility  of  the  evidence  of  reputa- 
tion has  already  been  considered  in  the  preceding  volume.^  In 
regard  to  the  language  and  conduct  of  the  parties,  it  is  competent  to 
show  their  conversation  and  letters,  addressing  each  other  as  man 
and  wife ;  ^  their  elopement  as  lovers,  and  subsequent  return  as 
married  persons ;  ^  their  appearing  in  respectable  society,  and 
being  there  received  as  man  and  wife ;  ^  their  observance  of  the 
customs  and  usages  of  society,  peculiar  to  the  entry  upon  or  sub- 
sistence of  that  relation  ;  ^  the  assumption  by  the  woman  of  the 
name  of  the  man,  the  wedding-ring,  the  apparel  (where  such  dif 
ference  exists)  appropriate  to  married  women,  and  any  other  con 
duct,  sciente,  vidente,  et  patiente  viro,  indicative  of  her  marriage  to 
him.^  Their  cohabitation,  also,  as  man  and  wife,  is  presumed  to  be 
lawful  until  the  contrary  appears.  Tlie  like  inference  is  drawn 
from  the  baptism,  acknowledgment,  and  treatment  of  their  children 
by  them  as  legitimate  ;  "^  and  from  their  joining  as  man  and  wife 
in  the  conveyance  of  her  real  estate,  or  lier  joining  with  him  in  a 
deed  or  other  act,  releasing  her  right  of  dower  in  his  estate ;  ^  and 

1  Ante,   Vol.  1,  §§  103,  104,  106,  107,  Trimble,  2  Carter  (Ind.),  76.]    [*  Evidence 

131-134.     It  has  been  stated,  in  a  work  of  of  reputation  of  marriar^e  and  cohabita- 

distinguished   merit   (Hubback,   Evid.  of  tion   is   competent   to   prove   a    marriage 

Succession,   p.   244),    that    reputation   of  whenever  the  question  arises  in  any  civil 

marriage,  unlike  that  of  other  matters  of  action,  except  for  criminal   conversation, 

pedigree,  may  proceed  from  persons  who  Northfield  v.  Vershire,  33  Vt.  110.] 

are  not  members  of  the   family.     But  in  ^  Alfray  v.  Alfray,  2  Phillim.  Eccl.  R. 

the   principal    case  cited    to    this    point,  547  ;  [Gaines  v.  Relf,  12  How.  U.  S.  472.  i 

(Evans  v.  Morgan,  2  C.  &  Jer.  453),  the  ^  Cooke  v.   Lloyd,  Peake's  Cas.   App" 

chief  reason  for  admitting  the  sufficiency  Ixxiv. 

of  such  evidence,  after  verdict,  was,    that  *  Hubback,  Evid.  of  Succession,  p.  247. 

the  witness  was  not  cross-examined,  and  ^  Enton  v.  Bright,  2  Phillim.  Eccl.  R. 

that  the  defendant  did  not  put  the  want  of  85  ;  Fownes  v.  Ettricke,  Id.  257. 

proof  of  the  marriage  to  the  judge  as  a  ^  Hubback,    Evid.  of    Succession,    pp. 

ground   of  nonsuit,   so   that  the  plaintiff  247,  248.     [*  Evidence  that  a  woman  oo 

might  have  had  an  opportunity  of  supply-  cupies  the  same  bed  with  defendant  in  his 

ing   the  defect  by  other  evidence.      See  tenement,  and  was  seen  getting  dinner  and 

Johnson  z;.  Lawson,  9  Moore,  187  ;  2  Bing.  performing  other  household  duties  there, 

88,  S.  C. ;  Roe  v.  Gore,  9  Moore,  187,  n ;  in  his  absence,  is  competent  to  prove  her 

Donelly    v.    Donelly,   8   B.    Monr.    113;  to   be   his  wife.     Commonwealth  v.  Hur- 

Stevenson   v.    McReary,    12    S.  &  M.  9 ;  ley,  14  Gray,  411.] 

Taylors.  Robinson,  16  Shepl.  323 ;  [Dun-  "■?  Doe  v.  Fleming,  4  Bing.  266;  Hub- 
barton  V.  Franklin,  19  N.  H.  257  ;  State  v.  back,  Evid.  of  Succession,  pp.  248-251, 
Winkley,  14  lb.  480  ;  Clayton  v.  Wardell,  262 ;  Bond  v.  Bond,  2  Phillim.  Eccl.  R. 
4  Comst.  230  ;  Hicks  v.  Cochran,  4  Edw.  45  ;  The  People  v.  Humphrey,  7  Johns. 
Ch.  Rep.  107;  Thorndell  y.  Morrison,  25  314;  Newburyport  v.  Boothbay,  9  Mass. 
Penn.  Staie  R.  326  :  Copes  v.   Pearce,   7  414. 

Gill,  247  ;  Martin  r.  Martin,  22  Ala.  86 ;  ^  Hcrvcy   v.    Hervey,   2    W.   Bl.    877  ; 

Harman  v.  Harman.  IG  III.  85  ;  Trimble  v.  Hubback,  Evid.  of  Succession,  p.  248. 


PART  IV.]  MARRIAGE.  421 

from  the  disposition  of  property  to  a  party  by  a  mode  of  assur- 
ance which  is  operative  only  where  legal  consanguinity  exists  ; 
such  as,  a  covenant  to  stand  seised,  and  the  like,  or  by  the  devo- 
lution upon,  and  enjoyment  by  children,  of  property,  to  which,  un- 
less they  were  legitimate,  they  would  not  have  been  entitled.^ 
The  recognition  or  proof  of  collateral  relationship,  also,  is  admissi- 
ble as  evidence  of  the  lawful  marriage  of  those  through  whom  that 
relationship  is  derived. ^ 

§  463.  Where  a  contract  in  writing  is  by  the  law  of  the  country, 
or  of  the  religious  community,  made  essential  to  the  marriage,  as 
is  the  case  among  the  Jews,  it  should  be  produced  as  the  proper 
evidence  of  the  fact.^  And  where  written  contracts  are  not  requi- 
site nor  usual,  yet  if  they  have  been  in  fact  made,  though  by  words 
de  futuro,  these,  as  well  as  marriage  articles,  and  other  ante-nup- 
tial and  dotal  acts,  are  admissible  in  evidence,  as  tending  to  raise 
a  presumption  that  the  contemplated  marriage  took  effect.*  A  cer- 
tificate of  marriage^  also,  by  the  officiating  clergyman  or  magistrate, 
though  ordinarily  not  in  itself  evidence  of  the  fact  it  recites,  yet  if 
proved  to  have  been  carefully  kept  in  the  custody  of  the  party 
■whom  it  affects,  and  produced  from  the  proper  custody,  it  may  be 
read  as  collateral  proof,  in  the  nature  of  a  declaration  and  asser- 
tion, by  the  party,  of  the  facts  stated  in  the  paper.^  Such  certifi- 
cate, also,  or  a  copy  of  the  parish  register  or  other  document  of 
the  like  character,  may  be  read  as  evidence  confirmatory  of  the 
proof  by  reputation  and  cohabitation.^  And  where  the  marriage 
appeared  to  have  been  solemnized  by  one  who  publicly  assumed 
the  office  of  a  priest,  in  a  public  chapel,  and  was  followed  by  long 
cohabitation  of  the  parties,  this  was  held  sufficient  to  warrant  the 
presumption  that  he  was  really  a  priest,  and  that  the  marriage  was 
therefore  valid. ^ 

§  464.  The  evidence  of  marriage  may  be  rebutted  by  proof  that 
any  circumstances,  rendered  indispensably  necessary  by  law  to  a 
valid  marriage,  were  wanting.^  Thus,  it  may  be  shown  that  eithei 
of  the  parties  had  another  husband  or  wife,  living  at  the  time  of 

1  Slaney  v.  "Wade,  1    My.   &  C.  358 ;  *  Hubback,    Evid.    of    Succession,    p. 

Hubback,  Evid.  of  Succession,  pp.  248,  254.  257. 

-  Eaton  V.  Bright,  2  Phillim.  Eccl.  R.  ^  Hubback,    Evid.   of    Succession,   pp. 

35 ;    Id.    161,    S.   C.      See   ante,   Vol.    1,  258,  259. 

§  194.  6  Doe  V.  Grazebroolc,  4  Ad.  &  EL  406, 

^  Semh.   Horn  v.   Noel,    1   Campb.  61.  N.  S. 

See,  as  to  the  Jewish  contract,  Lindo  v.  ^  Rex  v.  Brampton,  10  East,  287. 

Bclisario,  1   Hajig.  Consist.  R.  225,  247,  ^  Milford  v.  Worcester,  7  Mass.  48. 
App.  9  ;  Goldsmid  v.  Bromer,  Id.  324. 


422 


LAW   OF  EVIDENCE. 


[part  IV. 


the  marriage  in  question  ;  or,  that  the  parties  were  related  within 
the  prohibited  degrees  ;  or,  that  consent  was  wanting,  the  marriage 
having  been  effected  by  force,  or  fraud  ;  or  that  one  of  the  parties 
was  at  the  time  an  idiot,  or  non  compos  mentis,  or  insane.^  And 
where  marriage  is  inferred  from  cohabitation,  the  presumption  may 
be  destroyed  by  evidence  of  the  subsequent  and  long-continued 
separation  of  the  parties.^ 


1  2  Kent,  Comm.  pp.  76,  77  ;  1  Bl. 
Gomm.  438 ;  Gathings  v.  Williams,  5 
Ired.  487.  Where  the  marriage  is  invali- 
dated on  the  ground  of  want  of  consent, 
the  subject  must  have  been  investigated 
and  the  fact  established,  in  a  suit  instituted 
for  the  purpose  of  annulling  the  marriage. 
2  Kent,  Comm.  p.  77 ;  Wightman  v. 
Wightman,  4  Johns.  Ch.  R.  343.  See 
also  Middleborough  v.  Rochester,  12  Mass. 
363 ;  Turner  v.  Myers,  1  Hagg.  Consist 
R.  414;  [Gaines  v.  Relf,  12  How.  U.  S. 
472;  True  v.  Ranney;  1  Foster,  (N.  H.) 
52 ;  Keyes  v.  Keyes,  2  lb.  553  ;  Hcfirier 
V.  Heffner,  23  Penn.  State  R.  104  ;  Martin 
V.  Martin,  22  Ala.  86 ;  Powell  v.  Powell, 
27  Miss.  783  ;  Robertson  v.  Cole,  12  Tex- 
as, 356  ;  Bishop  on  Mar.  &  Div.  §§  63  - 
123,  and  §§  176-271.  The  admission  of 
the  husband  that,  at  the  time  of  contract- 
ing his  present  marriage,  he  had  a  former 


wife  living,  is  not  competent  evidence,  even 
in  a  civil  action,  to  prove  the  nullity  of  his 
second  marriage.  Gaines  v.  Relf,  12  How. 
U.  S.  472.] 

'■^  Van  Buskirk  v.  Claw,  18  Johns.  346; 
[Wcntherlbrd  v.  Weatherford,  20  Ala.  548. 
But  if  a  marriage  was  duly  solemnized 
between  parties  capable  of  contracting,  it 
cannot  be  annulled,  nor  any  of  its  conse- 
quences as  to  third  persons  be  relieved 
against,  although  it  was  contracted  and 
solemnized  for  the  purpose  of  preventing 
such  persons  from  receiving  property  which 
they  would  otherwise  have  been  entitled 
to.  McKinney  v.  Clark,  2  Swan  (Tenn.) 
321.]  [*  Marriage  cannot  be  presumed 
between  two  persons  on  the  ground  of 
cohabitation  when  this  would  oblige  the 
presumption  of  bigamy  on  the  part  of 
either  of  them.  Case  v.  Case,  17  CaL 
598.] 


I'ARi'  IV.]  NUISANCE.  423 


NUISANCE. 

[•§  465.  Nuisance  either  public  or  private. 

466.  Acts  constituting  nuisance  in  one's  dwelling-house. 

467.  What  constitutes  nuisance  to  lands. 

468.  What  constitutes  nuisance  to  incorporeal  hereditaments. 

469.  Reversioner  and  tenant  in  possession  may  each  have  an  action  for  nntsanca 

injurious  to  reversion. 

470.  What  the  plaintiff  must  prove  in  an  action  upon  the  case  for  a  nuisance. 

471.  Legal  title  to  an  incorporeal  hereditament  is  proved  by  an  uninterrupted  ad- 

verse enjoyment  for  twenty  years,  also  by  a  quasi  estoppel. 

472.  Suificient  to  show  that  injury  was  caused  by  defendant's  authority. 

473.  Burden  of  proof  is  on  the  plaintiff  to  show  that,  notwithstanding  any  neglect 

or  fault  on  his  part,  the  injury  is  in  no  respect  attributable  to  himself,  but  is 
wholly  attributable  to  the  misconduct  on  the  part  of  the  defendant  as  the 
proximate  cause. 

474.  Rule  of  damages  is  the  amount  of  injury  actually  sustained  at  commencement 

of  suit.  Where  injury  is  direct  infringement  of  plaintiff's  right,  no  special 
damage  need  be  proved. 

475.  General  defences,  license  from  plaintiff,  denial  of  injurious  consequences,  and 
prescriptive  right. 

476.  Ceasing  to  enjoy  an  incorporeal  hereditament  destroys  the  right.] 

§  465.  Nuisance,  in  its  largest  sense,  signifies  "  anything  that 
worketh  hurt,  inconvenience,  or  damage."  ^  It  is  either  public, 
annoying  all  the  members  of  the  community  ;  or  it  is  private, 
injuriously  affecting  the  lands,  tenements,  or  hereditaments  of  an 
individual.     The  latter  only  will  be  here  considered. 

§  466.  Nuisances  in  one's  divelling-house  are  all  acts  done  by 
another  from  without,  which  render  the  enjoyment  of  life  within 
the  house  uncomfortable ;  whether  it  be  by  infecting  the  air  with 
noisome  smells,  or  with  gases  injurious  to  health  ;  ^  or  by  exciting 

1  3  Bl.  Comm.  215;  [Coker  r.  Birge,  9  of  the  plaintiff  were  nuisances,  witnesses 

Geo.  425.     An   action   on   the  case  for  a  who  had  examined  the  premises  and  were 

nuisance  is  not  abated  or  barred  by  a  sub-  acquainted  by  personal  observation  with 

sequent  abatement  of  the  nuisance  by  the  the  efibct  upon  the  air  in  such  cases,  might 

plaintiff.     Call  v.  Buttrick,  4  Cash.  345.]  properly  testify,  in  connection   with   the 

^  [*  In  Kearney  v.  Farrell,  28  Conn.  317,  facts,  to  their  opinions  founded  on  the  facts 

it  was  held  that  in  an  action  on  the  case  that  the   effluvia  from   the  privy  and  sty 

for  a  nuisance,  where  the  question  was  must  necessarily    render    the    plaintiff's 

whether  a  certain  privy  and  piii:-sty  placed  house  uncomfortable  as  a  place  of  abode, 

by  the  defendant  near  the  dwelliiig-house  and  that,  for  the  purpose  of  showing  that 


424  LAW  OF  EVIDENCE.  [PART  IV 

the  constant  apprehension  of  danger,  whether  by  keeping  great 
quantities  of  gunpowder  near  the  house,  or  by  deep  and  danger- 
ous excavation  of  the  neighboring  soil,  or  by  suffering  the  adjoin- 
ing tenement  to  be  ruinous,  and  in  danger  of  falling  upon  or 
otherwise  materially  injuring  the  neighboring  house  and  its  in- 
mates ;  1  or,  by  the  exercise  of  a  trade  by  machinery,  which 
produces  continual  noise  and  vibration  in  the  adjoining  tenement ; 
or,  by  so  exercising  a  trade  as  naturally  to  produce  strife,  colli- 
sion, and  disorderly  conduct  among  the  persons  resorting  to  the 
premises.  So  it  is  a  nuisance,  if  one  overhangs  the  roof  of  his 
neighbor,  throwing  the  water  upon  it  from  his  own ;  or,  if  he 
obstructs  his  neighbor's  ancient  lights  ;  or,  if,  without  due  pre- 
caution, he  pulls  down  his  own  walls  or  vaults,  whereby  injury  is 
caused  to  the  buildings  or  wall  of  his  neighbor.  But  the  mere 
circumstance  of  juxtaposition  does  not  oblige  him  to  give  notice 
to  his  neighbor  of  his  intention  to  remove  his  own  walls ;  nor  is 
he  bound  to  use  extraordinaiy  caution,  where  he  is  ignorant 
of  the  existence  of  the  adjacent  wall,  as,  if  it  be  under  the 
ground.^ 

§  467.  In  regard  to  lands,  it  is  a  nuisance  to  carry  on  a  trade 
in  the  vicinity,  by  means  of  which  the  corn  and  grass  or  the 
cattle  are  injured ;  or  to  neglect  to  repair  and  keep  open  ditches 
by  means  of  which  the  land  is  overflowed.  It  is  also  a  nuisance 
to  stop  or  divert  water,  that  uses  to  run  to  another's  mill,  or 
through  or  by  his  lands  ;  or  to  corrupt  a  watercourse  and  render 
it  offensive  or  less  fit  for  use.^  For  every  man  is  entitled  to  the 
enjoyment  of  the  air  in  its  natural  purity,  of  his  ancient  lights 
without  obstruction,  of  the  flow  of  waters  in  their  natural  course 

the  offensive  smells  were  an  annoyance  to  had  authority  to  make  use  of  the  stream 

his  fomily,  the  plaintiff  might  introduce  for  purposes  of  irrigation,  and  thus  by  that 

evidence  of  complaints  made  by  his  wife,  use  divert  a  portion  of  it,  it  has  been  hela 

since  dead,  while  suffering  from  the  offen-  under  the  condition,  that   such   diversion 

sive  smells,  and  at  a  time  when  they  were  was,  under  all  the   circumstances,  a  rca- 

perceived  by  others.]  sonahle  use  of  tlie  stream,  and   that  the 

1  Keilw.  98  b,  pi.  4  ;  Co.  Lit.  56  a,  note  surplus  of  the  water  thus  used  must  be 
(2),  56  b;  Loring  v.  Bacon,  4  Mass.  575,  returned  into  its  natural  channel.  These 
578.  cases   carry  a  strong   implication  that  a 

2  Trowcr  v.  Chadwick,  3  Bing.  N.  C.  diversion  of  the  entire  stream,  or  of  a  con- 
834 ;  3  Scott,  699,  S.  C.  ;  Chadwick  v.  siderable  part  of  it,  is  prejudicial  to  the 
Trower,  6  Bing.  N.  C.  1  ;  Panton  v.  Hoi-  proprietor  below,  and  is  not  justifiable. 
land,  17  Johns.  92;  The  Peoples.  Cun-  Weston  v.  Alden,  8  Mass.  136";  Coll)urn 
ningham,  1  Denio,  524.  v.  Richards,  13  Mass.  420;  Cook  r.  Hall, 

83   Bl.   Comm.    216-218;  [Walter  r.  3  Pick.  269;  Embrev  v.  Owen,   6  Wdsh. 

Selfe,  4  Eng.  Law  &  Eq.  15  ;  Ncwhall  v.  H.  &  Gord.  353."    'By   Shaw,   C.  J.,  in 

L-eson,  8  Cush.  592,  599.     "  Where  it  has  Newhall  v.  Iresoa,  8  Cush.  599.] 
been  considere  1  that  a  riparian  proprietor 


PART  IV.] 


NUISANCE. 


425 


and  condition  through  his  own  land ;  and  to  the  support  of  the 
neighboring  soil,  both  to  preserve  tlie  surface  of  his  own  in  its 
natural  state,  unbroken,  and  to  uphold  his  ancient  buildings 
thereon.^  But  it  is  not  a  nuisance  to  divert  a  subterranean  flow  of 
water  under  another's  land,  by  lawful  operations  on  one's  own.^ 

§  468.  In  regard  to  incorporeal  hereditaments,  nuisances  consist 
in  obstructing  or  otherwise  injuriously  affecting  a  way,  which  one 
has  annexed  to  his  estate,  over  the  lands  of  another ;  or  in  impair- 
ing the  value  of  his  fair,  market,  ferry,  or  other  franchise,  by  any 
act  causing  a  continuing  damage.^ 

§  469.  If  the  nuisance  is  injurious  to  the  reversion.^  the  rever- 
sioner, and  the  tenant  in  possession,  may  each  have  an  action  for 


1  Wyatt  V.  Harrison,  3  B.  &  Ad.  871  ; 
Dodd  V.  Holme,  1  Ad.  &  El.  493  ;  3  N.  & 
M.  739.  And  see  the  learned  notes  of  Mr. 
Rand,  to  the  opposing  case  of  Thurston  v. 
Hancock,  12  Mass.  212,  227  a,  228  a; 
Gale  V.  Whatley  on  Easements,  pp.  216- 
227.  [Where  one  does  a  lawful  act  on  his 
own  premises,  he  cannot  be  held  responsi- 
ble for  injurious  consequences  that  may 
result  from  it,  unless  it  was  so  done  as  to 
constitute  actionable  negligence,  that  is, 
if  in  doing  it  he  did  not  use  such  care  and 
caution  as  men  of  common  prudence  usu- 
ally exercise  in  the  management  of  their 
own  concerns.  Rockwood  v.  Wilson,  11 
Gush.  221,  226. J  [*In  an  action  for  a 
nuisance  to  a  messuage,  dwelling-house, 
and  premises,  caused  by  no.xious  vapors 
proceeding  from  smelting  works  upon 
lands  of  the  defendants  to  which  they 
pleaded  tlie  general  issue,  the  judge  di- 
rected the  jury  that  every  man  is  bound 
to  use  his  own  property  in  such  a  manner 
as  not  to  injure  the  property  of  his  neigh- 
bor, unless  by  the  lapse  of  a  certain  period 
of  time  he  has  acquired  a  prescriptive 
right  to  do  so.  But  that  the  law  does 
not  regard  trifling  inconveniences,  every- 
thing must  be  looked  at  from  a  reasona- 
ble point  of  view ;  and,  therefore,  in  an 
action  for  nuisance  to  property  by  noxious 
vapors  arising  on  the  land  of  another,  the 
injury,  to  be  actionable,  must  be  such  as 
visibly  to  diminish  the  value  of  the  prop- 
erty and  the  comfort  and  enjoyment  of  it. 
That,  in  determining  that  question,  the 
time,  locality,  and  all  the  circumstances 
should  be  taken  into  consideration;  that  in 
counties  where  great  works  have  been 
erected  and  carried  on,  which  are  the 
means  of  developing  the  national  wealth, 
persons  must  not  stand  on  extreme  rights, 
and  bring  actions  in  respect  of  every  mat- 
ter of  annoyance,  as,  if  that  were  so,  busi- 


ness could  not  be  carried  on  in  those  places. 
Held  no  misdirection.  St.  Helen's  Smelt- 
ing Co.  V.  Tippin-,  4  B.  &  S.  408,  6016, 
Exch.  Cham.,  and  11  Jur.  N.  S.  785, 
House  of  Lords.  See  also  Bamford  v. 
Turnlcy,  3  B.  &  S.  66 ;  S.  C.  9  Jur.  N.  S. 
377,  where  these  questions  are  very  fully 
discussed.  Also  Cavey  v.  Ledbitter,  3  F. 
&  F.  14.  Carrying  on  a  lawful  trade  in  the 
ordinary  and  obvious  manner  is  not  neces- 
sarily carrying  it  on  in  a  proper  manner. 
Stockport  Waterworks  Company  v.  Pot- 
ter, 7  Jur.  N.  S  880.  See  also  Barnes  v. 
Hathorne,  54  Maine  124.] 

2  Acton  V.  Blundell,  12  M.  &  W.  324. 

3  3  Bl.  Comm.  218,  219;  [Boston  & 
Lowell,  &c.  Corp.  v.  Salem,  &c.  Railroa* 
Co.,  2  Gray,  1.  If  a  party  suffers  special 
damage  from  a  public  nuisance,  he  may 
have  his  action  therefor  against  the  person 
maintaining  the  nuisance.  Stetson  v. 
Faxon,  19  Pick.  147.  In  this  case,  the 
defendant  had  erected  a  warehouse  that 
piojected  several  feet  into  the  street,  and 
beyond  the  plaintiffs  warehouse,  which 
stood  near  on  the  line  of  the  street,  by 
means  of  which  the  plaintiff's  warehouse 
was  obscured  from  the  view  of  the  passen- 
gers, and  travel  was  diverted  to  a  distance 
from  it,  and  it  was  rendered  less  eligible 
as  a  place  of  business,  and  the  plaintiff 
was  obliged  to  reduce  the  rent,  and  it  was 
held  to  be  such  special  damage  as  would 
give  the  plaintiff  a  right  of  action.  Cole 
V.  Sprowl,  35  Maine,  161  ;  Baxter  v. 
Winooski  Turnpike  Co,  22  Vt.  114; 
Frink  v.  Lawrence,  20  Conn.  117.  No 
action  will  lie  against  a  town  by  an  owner 
x)f  land  who  is  prevented  from  a  conven- 
ient access  thereto,  and  is  thereby  damaged 
by  reason  of  a  defect  in  the  highway,  which 
the  town  is  obliged  to  keep  in  repair. 
Smith  V.  Dedham,  8  Cush.  522.] 


426  LAW   OF  EVIDENCE.  |_PART  IV. 

his  separate  damage  ;^  and  in  the  action  by  the  former,  the  tenant 
is  a  competent  witness.^  And  though  the  nuisance  might  be  abated 
before  the  estate  comes  into  possession,  yet,  if  it  is  capable  of 
continuance,  the  reversioner  may  maintain  an  action.^ 

§  470.  In  an  action  upon  the  case  for  a  nuisance,  the  plaintiff 
must  prove,  (1.)  his  possession  of  the  house  or  land,  or  his  rever- 
sionary  interest  therein,  if  the  action  is  for  an  injury  to  this  species 
of  interest ;  or,  his  title  to  the  incorporeal  right  alleged  to  have  been 
iryured ;  (2.)  the  injurious  act  alleged  to  have  been  done  by  the 
defendant ;  and  (3.)  the  damages  thence  resulting.  The  action  is 
local;  but,  ordinarily,  the  allegation  of  the  place  will  be  taken 
merely  as  venue,  unless  a  local  description  is  precisely  and  par- 
ticularly given,  in  which  case  it  must  be  proved  as  laid.* 

§  471.  (1.)  If  the  injury  is  done  to  the  plaintiff's  incorporeal 
right,  and  the  title  is  alleged  by  j^'^^scription,  such  title  must  be 
proved  ;  but  though  it  was  formerly  held  necessary  to  allege  spe 
cially  a  right  by  prescription,  it  is  now  deemed  sufficient  to  allege 
the  right  generally,  as  incident  to  the  plaintiff's  possession  of  the 
house  or  land.^  A  legal  title  to  an  incorporeal  hereditament  is 
proved  by  an  uninterrupted  adverse  enjoyment  for  twenty  years  ;  ^ 
and  it  may  be  presumed  by  the  jury,  from  such  enjoyment  for  a 
shorter  period,  if  other  circumstances  support  the  presumption. 
It  may  also  be  claimed  by  a  quasi  estoppel ;  as,  if  one  build  a 
new  house  on  his  land,  and  afterwards  sell  it  to  another,  neither 
the  vendor,  nor  any  one  claiming  under  him,  can  obstruct  the 
lights.'^  In  either  case,  the  extent  of  the  right  is  ascertained 
by  the  extent  and  nature  of  the  enjoyment.  Therefore,  if  an 
ancient  ivindow  to  a  shop  or  malthouse  is  somewhat  darkened,  no 
action  lies,  if  there  is  still  light  enough  for  the  purpose  for  which 
it  has  been  used.^     And  if  an  ancient  window  is  enlarged,  the 

1  Biddlcsford  v.  Onslow,  3  Lev.  209;  ^  Lewis  v.  Price,  cited  2  Saund.  175a; 
Shadwell  v.  Hutchinson,  4  C.  &  P.  333.  Winchclsea  Causes,  4  Burr.  1963  ;  Rex  v. 

2  Doddington  v.  Hudson,  1  Bing.  2.57.        Dawes,  Id.  2022  ;  Bealey  v.  Shaw,  6  East, 
8  Jcsscr  V.  (JifFord,  4  Burr.  2141  ;  Shad-     21.5  ;  Hill  v.  Crosby,  2  Pick.  466  ;  Angell 

well  w.  Hutchinson,  3  C.  &  P.  615.  on   Adverse  Enjoyment,  pp.  23-29,  62, 
*  Hainer  y.  Raymond,  5  Taunt.  789.  63;  ante,   Vol.  1,'§   17,  and   cases   there 
6  1  Chitty  on  PI.  3.30;  2   Saund.  175  a,  cited, 
note;  Yclv.  216  a,  note   (I),  by  Metcalf;         "  Ante,  Vol.  1,  §§  39,  45  ;  Best  on  Pre- 
Story  r.  Ordin,   12  Mass.  157.     Proof  of  sumptions,  pp.  102,  103,  106;  Palmer  v. 
the  plaintiff's   possession  of  part  of  the  Fletcher,  1    Lev.  122;  Compton  v.  Rich- 
premises   is  sufbcicnt  to  supjwrt  the  gen-  ards,  1   Price,  27  ;  Riviere  v.  Bower,  Ry. 
cral   allegation  that  he  was  possessed  of  a  &  M.  24  ;  Coutts  ».  Gorham,  1  M.  &  Malk. 
certain  messuage  and  premises.     Pcnn  v.  396;  Story  v.  Odin,  12  Mass.  157. 
Grafton,  2  Bing.  617.     And  see,  as  to  user,         »  Martin  v.  Goblc,  1  Campb.  320,  322. 
Page  V.  Hatchett.  1 0  Jur.  634. 


PART  IV.]  NUISANCE.  427 

adjoining  owner  cannot  obstruct  tlie  passage  of  light  through  the 
old  window,  notwithstanding  the  party  may  derive  an  equal 
quantity  of  light  from  the  new  one.^  But  to  maintain  this 
action,  there  must  be  a  substantial  privation  of  light,  so  as  to 
render  the  occupation  of  the  house  uncomfortable,  or  impair  its 
value ;  the  merely  taking  off  a  ray  or  two  is  not  sufficient.^  So, 
in  regard  to  a  way  by  prescription ;  the  extent  of  the  enjoyment 
determines  tlie  extent  of  the  right.  If,  therefore,  such  a  way  has 
always  been  used  for  one  purpose,  as,  to  cart  fuel,  it  cannot  be 
used  for  a  different  purpose,  as,  to  cart  stones ;  and  if  it  has  been 
used  only  for  a  way  to  Black- Acre,  it  cannot  be  used  for  a  way 
to  White-Acre,  which  lies  adjoining  and  beyond  it,  though  belong- 
ing to  the  same  person.^ 

§  472.  (2.)  As  to  the  proof  that  the  injury  was  caused  hy  the 
defendant,  it  is  sufficient  to  show  that  it  was  done  by  his  authority, 
or,  that,  having  acquired  the  title  to  the  land  after  the  nuisance 
was  erected,  he  has  continued  it.*  Thus,  if  the  nuisance  is  erected 
on  the  defendant's  land,  by  his  permission,  he  is  liable.^  And  if 
the  defendant,  after  judgment  against  him  for  the  nuisance,  lets 
the  same  land  to  a  tenant  with  the  nuisance  continuing  upon  it, 
he,  as  well  as  his  tenant,  is  liable  for  its  continuance,  in  another 
action.^  So,  if  the  plaintiff  has  purchased  a  house,  against  which 
a  nuisance  has  been  committed,  he  may  maintain  this  action  for 
the  continuance  of  the  nuisance,  after  request  to  abate  it.'^  If 
the  premises  were  let  for  the  purpose  of  carrying  on  a  trade  or 
business  which  is  necessarily  injurious  to  the  adjoining  proprietors, 
the  lessor  is  liable,  as  the  author  of  the  nuisance,  upon  proof  of 
the  injurious  nature  of  the  business.      But  if  the  purpose  for 

1  Chandler  v.  Thompson,  3  Campb.  ges,  5  Met.  205  ;  Brown  v.  Cayuga,  &c.  R. 
80 ;  Bealey  v.  Shaw,  6  East,  208.  R.  2  Kernan   (N.  Y.)  486.]     [*  Gandy  v. 

2  Back  V.  Stacey,  2  C.  &  P.  465  ;  Prin-  Jubber,  10  Jur.  N.  S.  652.  But  a  tenant 
gle  V.  Wernham,  7  C.  &  P.  377 ;  Wells  v.  for  years  is  not  liable  for  keeping  a  nui- 
Odv,  Id.  410.  sance  as  it  used  to  be  before  the  coinmence- 

3"  Senhouse  i'.  Christian,  1  T.   R.    569,  ment  of  his   tenancy,  if  he  has  not  been 

per  Ashhurst,  J. ;  Howell  v.  King,  1  Mod.  requested  to  remove  it,  or  done  any  new 

190  ;  39   H.  6,  6  ;  Davenport  v.  Lamson,  act  which  of  itself  was  a  nuisance.     And 

21  Pick.  72.  the  notice  must  be  distinct  and  unequivo- 

*  Penruddock's  case,  5  Co.  100 ;  Daw-  cal,  in  order  to  lay  the  foundation  of  an 

son  V.  Moore,  7  C.  &  P.  25.  action   against  him   for    its   continuance. 

5  Winter  v.  Charter,  3  Y.  &  J.  308.  If  Merely  refitting  a  structure  which  was  a 
the  injury  is  caused  by  a  wall  erected  partly  nuisance  to  a  right  of  way  after  it  has  been 
on  the  defendant's  land,  case  lies  for  the  injured,  but  not  abated,  will  not  render  the 
nuisanco.,  though  the  wall  is  erected  in  tenant  liable.  McDonough  v.  Oilman,  3 
part  on  the  plaintiff's  land,  by  an  act  of  Allen,  264.] 

trespass.     Wells  v.  Ody,  1  M.  &  W.  452.  7  Penruddock's   case,  5   Co.,  100,   101; 

6  Rosewell  v.  Prior,  2  Salk.  460  ;  Staple     Willes,  R.  583. 
V.  Spring,  10  Mass.  72 ;  /Hodges  v.  Hod- 


428  LAW   OF  EVIDENCE.  [PART  IV, 

which  the  premises  were  let  was  lawful,  and  the  business  was  not 
necessarily  injurious,  except  when  conducted  in  a  particular  man- 
ner, the  plaintiff  must  show  that  the  lessor,  who  is  sued,  either 
knew  or  had  reason  to  believe  that  it  would  be  so  conducted.^ 

§  473.  Ordinarily,  every  person  is  bound  to  use  reasonable  care 
to  avoid  or  prevent  danger  or  damage  to  his  person  and  property. 
Wherever,  therefore,  the  injury  complained  of  would  never  have 
existed  but  for  the  misconduct  or  culpable  neglect  of  the  plaintiffs 
as  in  the  case  of  an  obstruction  within  the  limits  of  the  highway, 
but  outside  of  the  travelled  path  against  which  he  negligently 
drove  his  vehicle  ;  ^  or,  in  the  case  of  a  collision  at  sea,  wholly  im- 
putable to  his  own  negligence  ;  ^  or,  of  his  neglect  to  shore  up  his 
own  house,  for  want  of  which  it  was  injured  by  the  pulling  down 
of  the  defendant's  adjoining  house,  notwithstanding  due  care  taken 
by  the  latter;^  in  these  and  the  like  cases  the  plaintiff  cannot  re- 
cover, but  must  bear  the  consequences  of  his  own  fault.  So,  if 
the  act  of  the  defendant  was  at  first  no  annoyance  to  the  plaintiff, 
but  has  become  so  by  his  own  act,  as  by  opening  a  new  window  in 
his  house,  this  being  the  proximate  cause  of  the  annoyance,  he 
cannot  recover.^  This  rule,  however,  admits  of  some  qualification, 
where  the  nuisance  affects  the  entire  dwelling ;  for  the  right  of 
habitancy  is  paramount  to  the  exigencies  of  trade.  Thus,  where 
a  slaughter-house  was  erected,  in  the  open  fields  adjacent  to  a 
growing  city,  but  not  at  that  time  near  to  any  dwelling-house  ;  but 
afterwards,  in  the  progressive  increase  of  the  city,  dwellings  were 
erected  near  to  the  slaughter-house,  insomuch  that  it  rendered 
them  unfit  for  comfortable  habitation  ;  it  was  held  a  nuisance,  for 
which  the  owners  of  the  houses  might  have  remedy  against  the 

1  Fish  V.  Dodge,  4  Denio,  311.     ["By  But  such  agreement  must  be   distinctly 

the  common    hiw,  the  occupier,   and  not  proved."     By    Shaw,    C.    J.     Lowell    v. 

the  landlord,  is  bound  as  between  himself  Spaulding,  4  Cush.  278 ;  Oakham  v.  Hol- 

and  the  public,  so  far  to  keep  the  buildings  brook,  11  Cush.  302.] 

in  repair  that   they  may  be  safe  for  the  ^  Smith  v.    Smith,   2  Pick.    621.     See 

public.     And  such  occupier  is,  prima  facie,  also  Flower  v.  Adam,  2  Taunt.  314  ;  Steele 

liable  to  third  persons  for  damages  arising  v.  Inland  W.  L.  Nav.  Co.,  2  Johns.  283 ; 

from  any  defect.     Regina  7j.  Watts,  1  Salk.  Lebanon  v.  Olcott,  1  N.  Hamp.  339. 

357 ;  S.  C.  2  Ld.  llaym.  856  ;  S.  C.  3  lb.  s  Vanderplank  v.  Miller,  1  M.  &  M.alk. 

18  ;  Clicctham  v.  Hanipson,  4  T.  R.  318.  169.     And  see  Buttertield  v.  Forrester,  11 

But  if  tlierc  be  an  express  agreement  be-  East,  60. 

tween  landlord  and  tenant,  that  the  former  *  Peyton  v.  Mayor,  &c.  of  London,  9  B. 

shall  keep  the  premises  in  repair,  so  that,  &   C.  725.     And   see  Blyth   v.   Topham, 

in  case  of  a  recover^' against  the  tenant,  Cro.  Jac.   158;  Whitmore  v.  Wilks,  3  C. 

he  would  have  his  remedy  over,  then,  to  &  P.  364 ;  Massey  v.  Goyner,  4   C.  &  P. 

avoid  circuity  of  action,  tlie  party  injured  161  ;  Armsworthy.  S.  East  Railw.  Co.,  11 

by  the  defect  and  want  of  repair  may  have  Jur.  758  ;  supra,  tit.  Carriers,  §  220. 

his  action  in  the  first  instance  against  the  ^  Lawrence  v.  Obec,  3  Campb.  514. 
landlord.    Payne  v.  Rogers,  2  H.  Bl.  350 


PART  IV.]  NUISANCE.  429 

proprietor  of  the  slaughter-house  for  its  continuance.^  If  the  in- 
jury is  wholly  imputable  to  the  defendant^  it  is  perfectly  clear  that 
he  is  liable.  The  case  of  faults  on  both  sides,  is  one  of  greater  em- 
barrassment;  but  the  result  of  the  authorities  seems  to  be  this, 
that  the  burden  of  proof  is  on  the  plaintiff  to  show  that,  notwith- 
standing any  neglect  or  fault  on  his  part,  the  injury  is  in  no  re- 
spect attributable  to  himself,  but  is  wholly  attributable  to  the  mis- 
conduct on  the  part  of  the  defendant,  as  the  proximate  cause? 
Thus,  if  injury  results  to  the  plaintiff's  house  by  the  actual  negli- 
gence or  misconduct  of  the  defendant,  in  pulling  down  his  own, 
the  plaintiff  may  recover  his  damages,  notwithstanding  he  has  not 
himself  used  the  precautions  of  shoring  up  his  walls.^  If  the 
fault  was  mutual,  the  plaintiff  cannot  recover.*  Thus,  where 
the  injury  was  occasioned  by  negligence  in  taking  down  a  party- 
wall,  and  the  plaintiff  appointed  an  agent  to  superintend  the  work 
jointly  with  the  defendant's  agent,  both  of  whom  were  to  blame,  it 
was  held,  that  neither  could  impute  negligence  to  the  other.^  If 
the  injury  resulted  from  an  omission  of  duty  by  the  defendant, 
such  as  to  repair  a  way,  or  a  fence,  his  obligation  must  be  proved.^ 
§  474.  (3.)  In  proof  of  the  damages,  it  is  sufficient  for  the 
plaintiff  to  show  that,  by  reason  of  the  injurious  act  or  omission  of 
the  defendant,  he  cannot  enjoy  his  right  in  as  full  and  ample  a 
manner  as  before,  or,  that  his  property  is  substantially  impaired 
in  value.  If  the  injury  is  a  direct  infringement  of  his  absolute 
right,  abridging  his  power  and  means  of  exercising  it,  such  as  di- 
verting or  polluting  a  watercourse  flowing  through  his  land,  or 
obstructing  his  private  way,  or  projecting  a  roof  so  as  to  overhang 
his  grounds,  or  the  like,  no  evidence  of  special  damage  will  be 

1  Brady  v.  Weeks,  3  Barb.  S.  C.  R.  157.     Taunt.  314;  Hawkins  v.  Cowper,  8  C.  & 
And  see  ace.  Cooper  v.  Barber,  3  Taunt.     P.  473. 

99  ;  Dana  v.  Valentine,  5  Met.  8 ;  Gale  &  3  Walters  v.  Pfeil,  1  M.  &  Malk.  362. 

Whatley    on    Easements,   p.    186    [277].  *  Vanderplank  v.  Miller,  1  M.  &  Malk 

[It  was  held  to  be  a  nuisance  in  AValter  169.     See  the  interesting   case  of  Dean  v. 

V.  Selle,   4  Eng.   Law  &    Eq.  15,  to  erect  Clayton,  7  Taunt.  489;  2  M;irsh.  577;   1 

and  maintain  a  brickyard  near  a  dwelling ;  Moore,  203,  commented  on  in  Bird  v.  Hoi- 

in  Soltaw  v.  De  Held,  9  lb.  104,  to  erect  brook,  4  Bing.  628;  White  v.  The  Win- 

a  belfry  upon  a  building  adjoining  to  the  nisimmet  Co.,  5  Monthly  Law  Rep.  203, 

plaintiff's  dwelling,  and  placing  and  ring-  [7    Cush.  155.]     See  Moore  v.  Abbot,   2 

ing  there  frequently  numerous  large-sized  Red.  46. 

bells.     See   also   Bonner  v.    Welborn,    7  &  Hill  v.  Warren,  2  Stark.  377.     And 

Geo.  296  ;  Coker  v.  Birge,  9  lb.  425.]  see  Stafford  Canal  Co.  v.  Hallen,  6  B.  & 

2  Walters  v.  Pfeil,  1  M.  &  Malk.  362;  C.  317. 

Dodd  V.  Holme,  2  Ad.'  &  El.  493  ;  3  N.  &  «  Cq.  Lit.  56  a,  note  (2),  Harg.  &  Butl. 

M.  739  ;  Bradley  v.  Waterhouse,  3  C.  &  P.  edit. ;  Russell  v.  The  Men  of  Devon,  2  T. 

318  ;  Brock  v.  Copeland,  1  Esp.  203  ;  Bird  R.   671  ;  Loring  v.  Bacon,  4  Mass.  575, 

V.  Holbrook,  4  Bing.  628  ;  Ilott  v.  Wilkes,  578  ;  Payne  v.  Rogers,  2  H.  Bl.  349. 
3  B    &  Aid.   304;  Flower   v.   Adam,   2 


430  LAW   OF  EVIDENCE.  [PART  IV. 

necessary,  in  order  to  entitle  him  to  recover  ;  but  where  the  dam- 
ages are  consequential,  or  affect  his  relative  rights,  some  damage 
must  be  proved.^  Where  the  injury  consists  in  the  destruction  of 
a  tenement,  the  measure  of  damages  is  the  value  of  the  old  tene- 
ment, and  not  the  cost  of  replacing  it  by  a  new  one.^  And  the 
rule  of  damages,  in  all  cases  of  nuisance,  is  the  amount  of  injury 
actually  sustained  at  the  commencement  of  the  suit.^ 

§  475.  The  defence  to  this  action,  aside  from  defect  of  proof  on 
the  part  of  the  plaintiff,  generally  consists  either  in  a  license  from 
the  plaintiff  to  do  the  act  complained  of,  or  in  a  denial  of  its  inju 
rious  consequences,  or,  where  the  plaintiff  claims  a  prescriptive 
right,  in  opposing  it  by  another  and  adverse  enjoyment,  of  suffi- 
ciently long  duration.  Thus,  if  the  evidence  of  title  to  a  right  of 
way,  or  to  the  use  of  lights,  is  derived  from  an  enjoyment  of  twenty 
years'  duration,  it  may  be  rebutted  by  evidence  that,  during  the 
whole  or  a  part  of  that  period,  the  premises  were  in  the  occupation 
of  the  defendant's  tenant ;  for  by  his  laches  the  defendant  was  not 
concluded  ;  *  or,  that  the  enjoyment  of  the  right  by  the  plaintiff 
was  under  the  express  leave  or  favor  of  the  defendant,  or  by  mis- 
take, and  not  adverse  to  the  defendant's  title.^  So,  the  plaintiff's 
claim  to  the  natural  flow  of  water  across  or  by  his  land,  without 
diminution  or  alteration,  may  be  rebutted  by  evidence  of  an  ad- 
verse right,  founded  on  more  than  twenty  years'  enjoyment,  to 
divert  or  use  it  for  lawful  purposes.^  If  the  act  complained  of 
was  done  by  the  parol  license  of  the  plaintiff,  at  the  defendant's 
expense,  this  is  a  good  defence,  though  if  the  license  were  execu- 
tory, it  might  have  been  void  by  the  statute  of  frauds  ;  for  even  a 
parol  license,  when  executed,  is  not  countermandable.'' 

§  476.    As  it  is  the  enjoyment  of  an  incorporeal  hereditament 

1  Cotteiell  V.  Griffiths,  4  Esp.  69  ;  Allen     v.  Butler,  3  Humph.  447  ;  Cooper  v.  Bar- 
r.  Ormand,  8  East,  4 ;  Fay  v.  Prentice,  9     ber,  3  Taunt.  99. 

Jur.  877;    1   M.   G.  &  S.    828;  Rose  v.  «  Beal  v.  Shaw,  6  East,  214,  per  Ld. 

Groves,  5  M.  &  G.  613;  6  Scott,  N.   R.  Ellenborough.    And  see  Balston  v.  Ben- 

645;    [Newhall  v.   Ireson,  8    Cush.    595,  sted,  1  Campb.  163. 

599.1  T  Winter    v.   Brockwell,    8    East,  308. 

2  Lukin    V.    Godsall,    2    Peake's    Gas.  See  also  1  Hayw.  28  ;  Lift-gins  v.  Inge,  7 
15.  Bing.  690;    Webb  v.  Paternoster,  Palm. 

8  Thayer  v.  Brooks,  17  Ohio  R.  489;  71  ;  Bridges  v.   Blanchard,  1    Ad.  &  El. 

[Troy  V.  Ch.  Railroad   Co.  3  Foster  (N.  536.     But  no  license  to  alter  windows  can 

H.)  83.]  be  inferred  from  the  fact  that  the  adjoin- 

*  Daniel  r.  North,    11  East,  372.     See  ing  owner  witnessed  the  alterations  as  they 

also  Barker  v.  Richardson,  4  B.  &  Aid.  were  going  on,  without  objection  ;  so  as 

578.  to  prevent  him  from  afterwards  obstruct- 

6  Campbell  V.  "Wilson,  3  East,  294.  And  ing   them   by  building  on  his  own  land, 

see  Brown  v.  Gay,  3  Greenl.  126  ;  Gates  Blanchard  v.  Bridges,  4  Ad.  &  El.  17C. 


PART  IV.]  NUISANCE.  431 

that  gives  the  prescriptive  right,  so  the  ceasing  to  enjoy  destroys  the 
right,  unless,  at  the  time  when  the  party  discontinues  the  enjoy- 
ment, he  does  some  act  to  show  that  he  intends  to  resume  it  with- 
in a  reasonable  time.^  Evidence  of  abandonment  by  the  plaintiff 
will  therefore  be  a  good  defence  against  his  claim ;  and  the  bur- 
den of  proof  will  be  on  him  to  show  that  the  abandonment  was 
but  temporary,  and  that  he  intended  to  resume  the  enjoyment  of 
the  right.^  If  the  plaintiflf,  having  a  right  to  the  unobstructed  ac- 
cess of  light  and  air  through  a  window,  should  materially  alter  the 
form  of  the  wall  in  which  the  window  is  put  out,  as  by  changing 
it  from  straight  to  circular,  this  will  amount  to  an  abandonment 
of  the  right.^ 

1  Moore  v.  Kawson,  3  B.  &  C.  332,  337,  was   a  grant  of  an  incorporeal  heredlta- 

per  Bavley,  J.     And  see  Garritt  v.  Sharp,  ment ;  and  post,  tit.  Prescription.] 

3  Ad.  &  EI.  325.     [See  also  Arnold  v.  Ste-  ^  ibid. 

Tens,  24  Pick.  106,  in  which  case  there  *  Blanchard  r.  Bridges,  4  Ad.  &  El.  17fi 


i32  LAW   OF  EVIDENCE.  [PART  IV. 


PARTNERSHIP. 

[*  §  477.  Evidence  sufficient  to  prove  partnership  against  the  partners  prima  facie 
proves   it  in   favor  of  them. 

478.  It  must  appear  that  the  plaintiffs  were  partners  at  the  time  of  making  the 

contract. 

479.  Partnership  usually  proved  by  persons  vi^ho  know  that  the  parties  have  actu 

ally  carried  on  business  as  partners. 

480.  Separate  agreement  by  defendant  with  one  of  the  plaintiffs  is  a  good  defence, 

if  it  would  have  been  available  if  made  by  all. 

481.  What  constitutes  a  sufficient  agreement  of  partnership  between  partners  them 

selves. 

482.  Same  agreement  ought  generally  to  be  established  by  such  competent  evidence 

as  is  accessible  to  strangers  in  suit  against  partners. 

483.  Less  strictness  of  proof  of  partnership  required  in  suit  against  partners  than 

in  suit  by  partners. 

484.  Partnership  may  be  proved  against  partners  by  their  respective  declarations 

and  admissions. 

485.  Defendant  may  answer  proof  of  partnership  by  evidence  of  arrangements  for 

his  limited  liability,  provided  plaintiff  had  previous  and  express  notice. 

486.  "When  a  surviving  partner,  or  a  widow  of  a  deceased  partner,  is  a  competent 

witness.] 

§  477.  The  question  of  partnership  is  raised  in  actions  either 
between  the  partners  themselves,  or  between  them  and  third  per- 
sons ;  but  the  evidence  which  would  prove  a  partnership  against 
the  partners,  in  favor  of  other  persons,  is  sufficient,  prima  facie,  to 
prove  it  in  actions  between  the  partners  alone,  and  also  in  actions 
in  their  favor  against  third  persons.^ 

§  478.  It  is  a  general  rule,  that  where  the  action  is  bij  several 
plaintiffs,  they  must  prove  either  an  express  contract  by  the  defend- 
ant with  them  all,  or  the  joint  interest  of  all  in  the  subject  of  the 
suit.  If  they  are  jointly  interested  as  partners,  they  may  sue  joint- 
ly upon  a  contract  made  by  the  joint  agent  of  all,  though  the  names 
of  all  are  not  expressed  in  the  instrument.     But  it  must  appear, 

1  Peacock  v.  Peacock,  2  Campb.  46,  per  not  constitute  a  partnership,  in  legal  strict- 

Ld.  Ellonborough  ;  Stearns  v.  Haven,  14  ness,  if  the  parties  themselves  have  treated 

Verm.  K.  .540.  "in  tlie  hitter  case  a  stran-  it   as  such   a  contract.     Ibid.      See   also 

ger  cannot  object  that  tlic  contract  does  Bond  v.  Pittard,  3  M.  &  W.  357. 


PART  IV.]  PARTNERSHIP.  433 

that  all  who  sue  were  partners  at  the  time  of  making  the  con- 
tract ;  ^  for  one  who  has  been  subsequently  admitted  as  a  partner 
cannot  join,  though  it  were  agreed  that  he  should  become  equally 
interested  with  the  others  in  all  the  existing  property  and  rights  of 
the  firm ;  unless,  upon  or  after  the  accession  of  the  incoming 
partner,  there  has  been  a  new  and  binding  promise  to  pay  to  the 
firm  as  newly  constituted  ;  ^  or  unless  the  security,  being  negotia- 
ble, has  been  transferred  by  indorsement.^  Where  several  plain- 
tiffs sue  as  indorsees  of  a  bill,  indorsed  in  blank,  they  are  not 
bound  to  prove  any  partnership,  nor  any  transfer  expressly  to  them- 
selves ;  unless  it  should  appear  that  it  had  once  been  specially 
transferred  to  some  of  them,  and  not  to  all.^  And  where  a  nego- 
tiable security  due  by  one  firm  is  indorsed  to  another  firm,  or  a 
debt  is  due  in  any  other  form  by  one  firm  to  another,  and  one  of 
the  individuals  is  a  partner  in  botli  firms,  no  action  can  be  main- 
tained for  the  debt,  for  no  one  can  be  interested  as  a  party  on  both 
sides  of  the  record.^  If  business  is  carried  on  in  the  names  of 
several  persons,  who  in  fact  are  not  partners,  the  entire  interest 
being  in  one  only,  he  may  sue  alone  ;  but  he  must  distinctly  prove 
that  the  others  were  not  his  partners ;  ^  to  prove  which  they  are 
competent  witnesses.'^  On  the  other  hand,  if  an  express  contract 
is  made  with  one  alone,  he  may  maintain  an  action  upon  it  in  his 
own  name  only,  though  others,  whose  names  are  not  mentioned  in 

1  Ord  V.  Portal,  3  Campb.  239,  240,  n. ;  and  several  note  of  a  partnership  is  not 
Ege  V.  Kyle,  2  Watts,  222 ;  McGregor  v.  extinguished  by  its  transfer  to  another  firm 
Cleveland,  5  Wend.  475.  composed  in  part  of  the  same  persons  ;  the 

2  Wilsford  V.  Wood,  1  Esp.  182.  And  latter  firm  may  negotiate  the  note  to  third 
see  Wright  f.  Russell,  3  Wils.  530;  2  W.  persons.  Fulton  v.  Williams,  11  Cush. 
Bl.  934;  Ex  parte  Marsh,  2  Rose,  239.  108,  110,  If  a  note  is  given  by  a  firm  to 
The  mere  transfer  of  a  balance  due  to  the  one  of  its  members,  he  cannot  sue  it  in  his 
old  firm  into  the  books  of  the  new  firm,  own  name,  but  he  may  indorse  it,  and  his 
does  not  vest  in  the  latter  a  right  of  action  indorsee  may  sue  ;  and  if  one  partner 
for  such  balance,  unless  the  assent  of  the  gives  his  note  to  the  firm,  they  cannot  sue 
debtor  is  proved.  Armsby  v.  Farnham,  it,  but  their  indorsee  may  bring  an  action 
16  Pick.  318.  thereon.     Ibid.     Little  v.  Rogers,  1  Met. 

3  Peas  V.  Hirst,  10  B.  &  C.  122  ;  Ord  v.  108  ;  Thayer  r.  Buff"nm,  11  lb.  398  ;  Da- 
Portal,  3  Campb.  239  ;  Ege  v.  Kyle,  2  vis  v.  Briggs,  39  Maine,  304 ;  Smith  v. 
AVatts,  222 ;  McGregor  v.  Cleveland,  5  Lusher,  5  Cow.  688.  And  one  partner, 
Wend.  475.  even   after   the    dissolution   of    the    firm, 

*  Rordasnz  v.  Leach,  1  Stark.  446  ;  Ma-  may  indorse  the  note  of  the  firm,  payable 

chel  V.  Kinnear,  Id.  499.  to  himself,   given   before   the  dissolution. 

s  Bosanquet  v.  Wray,   6    Taunt.   597;  Temple  v.  Seaver,  11   Cush.  314;  Quinn 

Mainwarriui,'  i'.  Newman,  2  B.  &  P.  120;  v.  Fuller,  7  lb.  224;  Decreet  v.  Burt,  lb. 

Moff"att  V.  Van  Millingen,  Id.  124,  n.    The  551.] 

purchase  of  such  a  bill  or  note  would  be         *>  Teed  v.  Elworthy,  14  East,  210;  At- 

regarded  as  payment  of  it,  for  account  of  kinson  v.   Laing,    1    D.   &  Ry.  Cas.  16 : 

the  partner  in  question.     Ibid.     And  the  Davenport  v.  Rackstrow,  1  C.  &  P.  89. 
giving  of  such  a  security  would  seem,  on         '^  Parsons  v.  Crosby,  5  Esp.  199 ;  G1(M 

the  same  principle,  to  amount  only  to  evi-  sop  v.  Colman,  1  Stark.  25. 
dence  of  a  similar  payment.     [The  joint 

VOL.  II.  28 


484  LAW   OF   EVIDENCE.  [PART  IV 

the  contract,  are  interested  in  it  jointly  with  himself,'*  and  might 
well  have  joined  in  the  action.^  If  the  name  of  the  firm  has  re- 
mained a  long  time  the  same,  but  the  partners  have  been  changed, 
parol  evidence  is  admissible  in  an  action  upon  a  contract  made 
in  the  name  of  the  firm,  to  show  that  the  plaintiffs  were  in  fact 
the  real  members  of  the  firm  at  the  time  of  making  the  contract.^ 

§  479.  The  usual  proof  of  partnership  is  by  the  evidence  of  clerks, 
or  other  persons,  who  know  that  the  parties  have  actually  carried 
on  business  as  partners.  Though  the  partnership  was  constituted 
by  indentures,  or  other  writings,  it  is  ordinarily  not  necessary,  in 
an  action  between  the  partners  and  third  persons,  to  produce  them,* 
And  if  the  witness  called  to  prove  a  partnership  in  fact,  is  unable 
to  recollect  the  names  of  all  who  are  members  of  the  firm,  his 
memory  may  be  assisted  by  suggesting  them.^ 

§  480.  In  defence  of  an  action  of  asswnjysit  brought  by  partners, 
the  defendant  may  show  any  separate  agreement  between  him  and 
one  of  the  plaintiffs,  which  would  have  been  available  if  made  by 
all ;  such  as  an  agreement  by  one  to  provide  for  the  payment  of  a 
bill,  accepted  by  the  defendant  for  the  accommodation  of  the  firm  ;  ^ 
or  an  agreement  with  the  drawer  of  a  bill,  by  A,  a  partner  in  the 
house  of  A  and  B,  to  provide  for  the  payment  of  the  bill,  which 
was  negotiated  by  them  to  the  firm  of  A  &  C,  in  which  also  he  was 
a  partner.''  So  where  the  defendant  has  allowed  to  one  partner 
the  amount  of  the  partnership  debt,  on  settlement  of  his  private 
account  against  the  partner,  if  done  in  good  faith,  it  is  a  valid  de- 
fence against  the  firm.^     So  if,  in  the  jDarticular  transaction,  the 

1  Lloyd  V.  Archbowle,  2  Taunt.  324;  140;  Bank  of  Ky.  v.  Brooking,  2  Littell, 
Mawman  v.  Gillett,  Li.  325,  n. ;  [Bank  of  4L  Mere  knowledge  on  their  part  is  no 
St.  Mary  v.  St.  John,  25  Ala.  366.]  proof   of  assent.     Elliott  v.   Dudley,    19 

2  Leveck  v.  Shaftoe,  2  Esp.  468  ;  Skin-  Barb.  326.] 

ner  ;■.  Stocks,  4  B.  &  Aid.  437  ;  Lord  v.  *  Alderson  v.  Clay,  1  Stark.  405 ;  Coil- 
Baldwin,  6  Pick.  348.  But  proof  that  the  yer  on  Partn.  406  ;  [Button  v.  Woodman, 
contract  was   expressly    made   with    one  9  Cash.  255.] 

alone,  upon  his  assertion,  that  the  subject-  ^  Ante,  Vol.  1,  §435  ;  Acerro  v.  Petroni, 

matter  was  his  sole  property,  will  be  con-  1  Stark.  400. 

(tlusive  to  defeat  an  action  on  that  contract  '^  Richmond  v.   Heapy,   1    Stark.    202  ; 

i)y  all  the  partners.     Lucas  v.  De  la  Cour,  SparroAV  v.    Chisman,    9    B.    &   C.    241  ; 

1  M.  &  S.  249.  Jones  v.  Yates,  9  B.  &  C.  532. 

3  JVIolIer  ?'.  Lambert,  2  Campb.  548.     [If  '  Jacaud  v.  Erench,  12  East,  317. 

the  note  of  the  firm  is  given  by  one   co-  ^  Henderson   v.  Wild,   2    Campb.    561. 

partner  for  his  individual  debt,  during  the  [It  is  also  a  valid  defence  against  the  firm, 

continuance   of  the  partnership,    and   the  though  the  partner  act  fraudulently,  if  tlie   • 

other  copartner,  with  a  full  knowledge  of  creditor   act    in    good    faith.     Homer   v. 

the  fact,  recognizes  and  ratifies  the  note  so  Wood,  11  Cusli.  62,  where  the  authorities 

given  as   a   partnership   note,    it   thereby  are  reviewed ;  Greeley  y.  Wyeth,  10  N.  H. 

binds  the  firm.     Wheeler  v.  Bice,  8  Cush.  15;  Richmond  v.  Heapv,  l"   Stark.    202; 

205,  208  ;  Sweet-^er  v.  French,  2  lb.  309  ;  Jones  v.  Yates,  9  B.  &  C.  532  ;  Wallace  v. 

Qansevoort  v.   Williams,  14  Wend.  139,  Kclsall,   7    Mces.    &    Welsh.   264,    273; 


PART  IV.] 


PARTNERSfflP. 


435 


conduct  of  one  pai'tner  lias  been  fraudulent,  as,  if  he  sell  and  de- 
ceitfully pack  goods  in  a  foreign  country,  to  be  imported  in  fraud 
of  the  revenue  laws,  it  is  a  good  defence  to  an  action  by  the  firm 
for  the  price,  though  his  partners  were  ignorant  of  the  fraud. ^ 

481.  As  between  the  parties  themselves,  a  partnership  is  consti- 
tuted by  a  voluntary  contract  between  two  or  more  competent  per- 
sons to  place  their  money,  effects,  labor,  and  skill,  or  some  or  all 
of  them,  in  lawful  commerce  or  business,  with  the  understanding 
that  there  shall  be  a  communion  of  the  profits  thereof  between 
them.2     The  proof  of  the  partnership,  therefore,  will  be  made  by 


Story  on  Partn.  §  238  ;  Collyer  on  Partn. 
§  643.  But  see  Purely  v.  Powers,  6  Barr, 
39::i.] 

1  Biggs  V.  Lawrence,  3  T.  R.  454.  [One 
partner  cannot  maintain  an  action  at  law 
on  the  covenants  in  the  articles  of  copart- 
nership to  recover  damages  of  his  copart- 
ner for  neglect  of  the  partnership  business, 
while  there  is  a  considerable  amount  due 
from  him  to  his  copartner,  and  the  debts 
due  by  and  to  the  firm,  the  bui'den  of 
which  is  to  be  borne,  and  the  benefit  en- 
joyed, by  the  partners  in  certain  propor- 
tions, are  not  all  settled.  Capcn  v.  Bar- 
rows, 1  Gray,  376.  382.  In  such  an  ac- 
tion, if  there  are  several  partners,  all  must 
join  against  the  delinquent  member  of  the 
firm.  Ibid.  No  action  at  law  can  be 
maintained  on  a  joint  agreement  by  the 
plaintiffs  and  defendants,  who  were  all 
members  of  the  same  joint- stock  company, 
formed  to  purchase  a  vessel  of  the  plain- 
tiffs. Myrick  v.  Dame,  9  Gush.  248 ; 
Green  v.  Chapman,  1  Williams  (Vt.)  236; 
CoUamer  v.  Foster,  26  Vt.  754.  Where 
two  persons  do  business  under  the  name  of 
one  of  them,  a  bill  drawn  on  that  person, 
and  by  him  accepted,  is  presumed  in  law 
to  bind  him  only,  and  not  the  firm.  Mer- 
cantile Bank  v.  Cox,  38  Maine,  500.] 

-  Story  on  Partn.  §  2  ;  3  Kent,  Comm. 
pp.  23,  "24  ;  Collyer  on  Partn.  p.  2.  A 
surgeon  selling  out  his  business,  but  re- 
taining a  moiety  of  the  first  year's  net 
profits,  for  introducing  his  patients  to  his 
successor,  and  other  like  services,  held  not 
a  partner.  Rawlinsou  v.  Clark,  15  M.  & 
W.  292.  A  proprietor  of  a  newspaper 
selling  out,  but  retaining  a  share  in  the 
profits,  held  a  partner,  under  the  circum- 
stances of  the  case.  Barry  v.  Nesham,  10 
Jur.  1010.  And  see  Pott  v.  Eyton,  15 
Law  Journ.  257,  N.  S.  [A  made  with  B 
the  following  agreement  in  writing  :  "  Sold 
B,  on  joint  account  with  A,  two  thousand 
boxes  of  candles  at  twenty-six  cents,  six 
months  from  delivery;  B  to  be  allowed 


two  and  a  half  per  cent  on  sales ;  on  all 
sales  not  approved  bj'  A,  B  is  to  guarantee 
the  same,  receiving  a  commission  of  two 
and  a  half  per  cent ;  for  one  iialf  of  the 
sales  made  by  B,  he  is  to  pass  over  the  pa- 
per to  A  ;  there  are  to  be  no  charges  for 
storage  ;  property  in  store  to  be  covered  by 
insurance  by  B  for  joint  account  and  ex- 
pense "  ;  and  the  parties  acted  under  and 
in  pursuance  of  this  agreement.  Held 
that  this  constituted  a  sale  of  an  undivided 
half  of  the  candles  by  A  to  B,  and  did  not 
make  A  and  B  partners  in  regard  thereto. 
Hawes  v.  Tillinghast,  1  Gray,  289.  Por 
other  cases  in  which  the  facts  were  held 
either  sufficient  or  insufficient  to  establish 
a  partnership,  see  Judson  v.  Adams,  8 
Gush.  556;  Fay  v.  Noble,  7  lb.  188; 
Trowbridge  v.  Scudder,  1 1  lb.  83  ;  Denny 
V.  Cabot,  6  Met.  82  ;  Bradley  ».  White,  10 
Met.  303  ;  Holmes  v.  Porter,  39  Maine, 
157  ;  Knowlton  v.  Reed,  38  lb.  246  ;  Ban- 
chor  V.  Cilley,  lb.  553  ;  Ripley  v.  Colby,  3 
Foster  (N.  H.)  438;  Newman  u.  Beaii,  1 
lb.  93;  Belknap  c.  Wendell,  1  lb.  175; 
Hatch  V.  Foster,  1  Williams  (Vt.)  515; 
Penniman  i\  Munson,  26  Vt.  164  ;  Mason 
I'.  Potter,  Ih.  722  ;  Noyes  v.  Cushman,  25 
lb.  390;  Brockway  v.  Burnap,  16  Barb. 
309;  Catskill  Bank  v.  Gray,  14  lb.  471  ; 
Vassor  v.  Camp,  lb.  341  ;  Hodgman  v. 
Smith,  13  Barb.  302;  Smith  r.  Wright, 
5  Sandf  113  ;  Wadsworth  v.  Manning,  4 
Md.  59  ;  Peirson  v.  Stein myer,  4  Rich. 
309;  Blue  v.  Leathers,  15  III  31  ;  Stoal- 
lings  V.  Baker,  15  Mis.  481  ;  Tibbatts  v. 
Tibbatts,  6  McLean,  80  ;  Stocker  v.  Brock- 
elbank,  5  Eng.  Law  &  Eq.  67  ;  Peel  v. 
Thomas,  29  lb.  276. 

If  the  several  proprietors  of  different 
portions  of  a  public  line  of  travel,  by 
agreem.ent  among  themselves,  appoint  a 
common  agent  at  each  end  of  the  route  to 
receive  the  fare  and  give  through-tickets, 
this  does  not  of  itself  constitute  them 
partners  as  to  passengers  who  purchase 
through-tickets,  so  as  to  reader  each  oaa 


436 


LAW   OF  EVIDENCE. 


[part  IV. 


any  competent  evidence  of  such  an  agreement.  If  it  is  contained 
in  written  articles,  these,  in  an  action  between  the  partners,  must 
be  produced  or  proved;  and  the  parties  themselves  will  be  gov- 
erned by  their  particular  terms,  but  their  precise  limitations  will 
not  affect  strangers,  to  whom  they  are  unknown. i 

§  482.  In  favor  of  third  persons,  and  against  the  partners  them- 
selves, the  same  agreement  ought  generally  to  be  established  by 
such  competent  evidence  as  is  accessible  to  strangers.  Where 
there  is  a  community  of  interest  in  the  property,  and  also  a  com- 
munity of  interest  in  the  profits,  there  is  a  partnership.  If  there 
is  neither  of  these,  there  is  no  partnership.  If  one  of  these  ingre- 
dients exist,  without  the  presence  of  the  other,  the  general  rule  is, 
that  no  partnership  will  be  created  between  the  parties  themselves, 
if  it  would  be  contrary  to  their  real  intentions  and  objects.  And 
none  will  be  created  between  themselves  and  third  persons,  if  the 
whole  transactions  are  clearly  susceptible  of  a  different  interpreta- 
tion, or  exclude  some  of  the  essential  ingredients  of  partnership.^ 


liable  for  losses  occnrring  on  any  portion 
of  the  line.  Ellsworth  v.  Tartt,  26  Ala. 
733.  See  also  Briggs  v.  Vanderbilt,  19 
Barb.  222.  See  ante,  §§  210-222,  and 
notes.] 

1  Winship  v.  United  States  Bank,  5 
Peters,  529  ;  Gill  v.  Kuhn,  6  S.  &  R.  333  ; 
Churchman  v.  Smith,  6  Whart.  146  ;  Til- 
lier  V.  Whitehead,  1  Dall.  269;  United 
States  Bank  v.  Binney,  5  Mason,  176; 
[Capen  v.  Barrows,  1  Gray,  376.] 

'■^  Story  on  Partn.  §  30.  This  learned 
author  proceeds  to  discuss  the  distinction 
between  an  agreement  for  a  compensation 
proportioned  to  the  profits,  and  an  agree- 
ment for  an  interest  in  such  profits,  so  as 
to  entitle  him  to  an  account  as  a  partner, 
and  then  observes  as  follows  :  "  Admitting, 
however,  that  a  participation  in  the  profits 
will  ordinarily  establish  the  existence  of  a 
partnership  between  the  parties  in  favor  of 
third  persons,  in  the  absence  of  all  other 
opposing  circumstances,  it  remains  to  con- 
sider, whether  the  rule  ought  to  be  re- 
garded as  anything  more  than  mere  pre- 
sumptive proof  thereof,  and  therefore  lia- 
ble to  be  repelled,  and  overcome  by  other 
circumstances,  and  not  as  of  itself  over- 
coming or  controlling  them.  In  other 
words,  the  question  is,  whether  the  circum- 
stances under  which  the  participation  in 
the  profits  exists  may  not  qualify  the  pre- 
sumption, and  satisfactorily  prove  that  the 
portion  of  the  profits  is  taken,  not  in  the 
character  of  a  partner,  but  in  the  charac- 
ter of  an  agent,  as  a  mere  compensation 


for  labor  and  services.  If  the  latter  be  the 
true  predicament  of  the  party,  and  the 
whole  transaction  admits,  nay,  requires, 
that  very  interpretation,  where  is  the  rule 
of  law  wliich  forces  upon  the  transaction 
the  opposite  interpretation,  and  requires 
the  court  to  pronounce  an  agency  to  be  a 
partnership,  contrary  to  the  truth  of  the 
facts  and  the  intention  of  the  parties  ? 
Now,  it  is  precisely  upon  this  very  ground 
that  no  such  absolute  rule  exists,  and  that 
it  is  a  mei-e  presumption  of  law,  which 
prevails  in  the  absence  of  controlling  cir- 
cumstances, but  is  controlled  by  them, 
that  the  doctrine  in  the  authorities  alluded 
to  is  founded.  If  the  participation  in  the 
profits  can  be  clearly  shown  to  be  in  the 
cliaracter  of  agent,  then  the  presumption 
of  partnership  is  repelled.  In  this  way  the 
law  carries  into  effect  the  actual  intention 
of  the  parties,  and  violates  none  of  its  own 
established  rules.  It  simply  refuses  to 
make  a  person  a  partner,  who  is  but  an 
agent  for  a  compensation,  payable  out  of 
the  profits  ;  and  there  is  no  hardship  upon 
tliird  persons,  since  the  party  docs  not  hold 
himself  out  as  more  than  an  agent.  This 
qualification  of  the  rule  (the  rule  itself  be- 
ing built  upon  an  artificial  foundation)  is, 
in  truth,  but  carrying  into  effect  the  real 
intention  of  the  parties,  and  would  seem 
far  more  consonant  to  justice  and  equity, 
than  to  enforce  an  opposite  doctrine,  which 
must  always  carry  in  its  train  serious  mis- 
chiefs, or  ruinous  results,  never  contem- 
plated by  the  parties."   Id.  §  38.    And  after 


PART  IV.] 


PARTNERSHIP. 


437 


The  cases  in  which  a  liability  as  partners  as  to  third  persons  exists 
have   been  distributed  into  five   classes.     First,  where,  although 


citing  and  commenting  on  the  principal 
cases  upon  ttiis  subject,  lie  concludes 
thus  :  "  These  may  suffice  as  illustrations 
of  the  distinction  above  alluded  to.  The 
whole  foundation  on  which  it  rests  is,  that 
no  partnership  is  intended  to  be  created  by 
the  parties  inter  sese  ;  that  the  agent  is  not 
clothed  with  the  general  powers,  rights,  or 
duties  of  a  partner ;  that  the  share  in  the 
profits  given  to  hirn  is  not  designed  to  make 
him  a  partner,  either  in  the  capital  stock  or 
in  the  profits,  but  to  excite  his  diligence, 
and  secure  his  personal  skill  and  exertions, 
as  an  agent  of  the  concern,  and  is  contem- 

flated  merely  as  a  compensation  therefor, 
t  is,  therefore,  not  only  susceptible  of  be- 
ing treated  purely  as  a  case  of  agency, 
but  in  reality  it  is  positively  and  absolute- 
ly so,  as  far  as  the  intention  of  the  parties 
can  accomplish  the  object.  Under  such 
circumstances,  what  ground  is  there  in  rea- 
son, or  in  equity,  or  in  natural  justice,  why 
in  f;ivor  of  third  persons  this  intention 
should  be  overthrown,  and  another  rule 
substituted,  which  must  work  a  manifest 
injustice  to  the  agent,  and  has  not  operated 
either  as  a  fraud,  or  a  deceit,  or  an  iuten- 
tional  wrong  upon  third  persons  ?  Wiiy 
should  the  agent,  who  is  by  this  very  agree- 
ment deprived  of  all  power  over  the  capital 
stock,  and  the  disposal  of  tlie  funds,  and 
even  of  the  ordinary  rights  of  a  partner  to 
levy  thereon,  aud  an  account  thereof,  be 
thus  sui)jected  to  an  unlimited  responsibil- 
ity to  third  persons,  from  whom  he  has 
taken  no  more  of  the  funds  or  profits 
(and,  indeed,  ordinarily  less  so)  than  he 
would  have  taken,  if  the  compensation  liad 
been  fixed  and  absolute,  instead  of  being 
contingent  ?  If  there  be  any  stubborn 
rule  of  law,  which  establishes  such  a  doc- 
trine, it  must  be  obeyed  ;  but  if  none  such 
exist,  then  it  is  assuming  the  very  ground 
in  controversy  to  assert  that  it  flows  from 
general  analogies  or  principles.  On  the 
contrary,  it  may  be  far  more  correctly 
said,  that  even  admitting  (what,  as  a  mat- 
ter unaffected  by  decisions,  and  to  be  rea- 
soned out  upon  original  principles,  might 
well  bo  doubted)  that  where  each  party  is 
to  take  a  share  of  the  profits  indefinitely, 
and  is  to  bear  a  proportion  of  the  losses, 
each  having  an  equal  right  to  act  as  a  prin- 
cipal, as  to  the  profits,  although  the  capi- 
tal stock  might  belong  to  one  only,  it  shall 
constitute,  as  to  third  persons,  a  case  of 
partnership  ;  yet  that  rule  ought  not  to  ap- 
ply to  cases  where  one  party  is  to  act 
manifestly  as  the  mere  agent  for  another, 
and  is  to  receive  a  compensation  for  his 
skill  and  services  only,  and  not  to  share  as 


a  partner,  or  to  possess  the  rights  and 
powers  of  a  partner.  In  short,  the  true 
rule,  ex  cequo  et  bono,  would  seem  to  bo, 
that  the  agreement  and  intention  of  the 
parties  themselves  should  govern  all  the 
cases.  If  they  intended  a  partnership  in  a 
capital  stock,  or  in  the  profits,  or  in  both, 
then,  that  the  same  rule  should  apply  in 
favor  of  third  persons,  even  if  the  agree- 
ment were  unknown  to  them.  Aud  on  the 
other  hand,  if  no  such  partnership  were  in- 
tended between  the  parlies,  then  that  there 
should  be  none  as  to  third  persons,  unless 
where  the  parties  had  held  themselves  out 
as  partners  to  the  public,  or  their  conduct 
operated  as  a  fraud  or  deceit  upon  third 
persons.  It  is  upon  this  foundation,  that 
the  decisions  rest,  whicli  affirm  the  truth 
and  correctness  of  die  distinction  already 
considered  as  a  qualification  of  the  more 
general  doctrine  contended  for.  And  in 
this  view  it  is  difticult  to  perceive  why  it 
has  not  a  just  support  in  reason,  and  equity, 
and  public  policy.  Wherever  the  profits 
and  losses  are  to  be  shared  by  the  parties 
in  fixed  proportions  and  shares,  and  each 
is  intended  to  be  clotlied  with  the  powers, 
and  rights,  and  duties,  and  responsibilities 
of  a  principal,  either  as  to  the  capital  stock, 
or  the  profits,  or  both,  there  may  be  a  just 
ground  to  assert,  in  the  absence  of  all  con- 
trolling stipulations  and  circumstances, 
that  they  intend  a  partnership.  But  where 
one  party  is  stripped  of  the  powers  and 
rights  of  a  partner,  and  clothed  only  with 
the  more  limited  powers  and  rights  of  an 
agent,  it  seems  harsh,  if  not  unreasonable, 
to  crowd  upon  him  the  duties  and  responsi- 
bilities of  a  partner,  which  he  has  never 
assumed,  and  for  which  he  has  no  reciproci- 
ty of  reward  or  interest.  It  has,  therefore, 
been  well  said  by  JNIr.  Chancellor  Kent,  in 
his  learned  Commentaries,  that  'to  be  a 
partner,  one  must  liave  sucli  an  interest  in 
the  profits  as  will  entitle  him  to  an  account, 
and  give  him  a  specific  lien  or  preference 
in  payment  over  other  creditors.  There  is 
a  distinction  between  a  stipulation  for  a 
compensation  for  labor  proportioned  to  the 
profits,  which  does  not  make  a  person  a 
partner ;  and  a  stipulation  for  an  interest 
in  such  profits,  which  entitles  the  party  to 
an  account  as  a  partner.'  And  Mr.  Collycr 
has  given  the  same  doctrine  in  equally 
expreissive  terras,  when  he  says,  that  in 
order  to  constitute  a  communion  of  jn'ofits 
between  the  parties,  which  shall  make 
them  partners,  the  interest  in  the  profit 
must  be  mutual ;  that  is,  each  person  must 
have  a  specific  interest  in  the  profits,  as  a 
principal  trader."     Id.  §§  48,  49.     [*  See, 


438  LAW   OF  EVIDENCE.  [PART  IV 

there  is  no  community  of  interest  in  the  capital  stock,  yet  the  par- 
ties agree  to  have  a  community  of  interest  or  participation  in  the 
profit  and  loss  of  the  business  or  adventure,  as  principals,  either 
indefinitely  or  in  fixed  proportions.  Secondly,  where  there  is, 
strictly  speaking,  no  capital  stock,  but  labor,  skill,  and  industry 
are  to  be  contributed  by  each  in  the  business,  as  principals,  and 
the  profit  and  loss  thereof  are  to  be  shared  in  like  manner. 
Thirdly,  where  the  profit  is  to  be  shared  between  the  parties,  as 
principals,  in  like  manner,  but  the  loss,  if  any  occurs  beyond  the 
profit,  is  to  be  borne  exclusively  by  one  party  only.  Fourthly, 
where  the  parties  are  not  in  reality  partners,  but  hold  tliemselves 
out,  or  at  least  are  held  out  by  the  party  sought  to  be  charged,  as 
partners  to  third  persons,  who  give  credit  to  them  accordingly. 
Fiftlily,  where  one  of  the  parties  is  to  receive  an  annuity  out  of 
the  profits,  or  as  a  part  thereof.^  Wherever,  therefore,  the  evi- 
dence brings  the  case  within  either  of  these  classes,  a  partnership, 
as  against  the  parties,  will  be  sufficiently  proved. 

§  483.  It  is  essential,  in  an  action  ex  contractu  against  partners^ 
that  the  evidence  of  partnership  should  extend  to  all  the  defend- 
ants ;2  otherwise  the  plaintiff  will  be  nonsuited.  But  the  utmost 
strictness  of  proof  is  not  required  ;  for  though,  where  they  sue  as 
plaintiffs,  tliey  may  well  be  held  to  some  strictness  of  proof,  be- 
cause they  are  conusant  of  all  the  means  whereby  the  fact  of  part 
nership  may  be  proved  ;  yet  where  they  are  defendants,  the  facts 
being  less  known  to  the  plaintiff,  it  is  sufficient  for  him  to  prove 
that  they  have  acted  as  partners,  and  that  by  their  habit  and  course 
of  dealing,  conduct,  and  declaration,  they  have  induced  those  with 
whom  they  have  dealt  to  consider  them  as  partners.^     Hence,  if 

on  this  question  of  partnership  frona  a  par-  partner,  is  not  whether  he  is  entitled  to 
ticipation  in  the  profits,  Berthold  v.  Gold-  participation,  in  tlie  profits,  —  although  this 
smith,  24  Howard,  U.  S.  536;  Denny  v.  affords  cogent,  often  conclusive,  evidence  of 
Cabot,  6  Met.  82;  Holmes  y.  Old  Colony  it,  —  but  whether  the  trade  has  been  carried 
R.  II.,  5  Gray,  58 ;  Fitch  v.  Harrington,  on  by  persons  acting  on  bis  behalf  This 
13  Gray,  468  ;  Brigham  v.  Dana,  29  Vt.  1 ;  rule  is  followed  in  Kilshaw  v.  Jukes,  3  B. 
Parsons  on  Partnership,  71,  and  note  /;  &  S.  847;  and  English  &  Irish  Church 
where  the  true  test  is  Said  to  be,  "  Did  the  University  in  re,  1  H.  &  M.  85.] 
supposed  partner  acquire  by  his  bargain  ^  Story  on  Partn.  §54;  Id.  §§  55-70; 
any  property  in,  or  any  control  over,  the  Collyer  on  Partn.  ch.  1,  sec.  2,  pp.  43-56. 
profits,  while  they  remained  undivided  ?  -  Young  v.  Hunter,  4  Taunt.  582.  lu 
If  so,  he  is  liable  to  third  persons,  and  assumpsit,  the  fact  of  partnership  is  put  in 
otherwise  not."  Also  Braley  v.  Goddard,  issue  by  the  plea  of  non-assumpsil.  Tom- 
49  Me.  115;  Athcrton  v.  Til  ton,  44  N.  H.  linson  r.  Collett,  3  Blnckf  436. 
452.  In  Cox  V  Hickman,  8  H.  L.  Cases,  ^  2  Stark.  Evid.  585,  586  ;  Evans  v. 
268,  306,  and  S.  C.  9  C.  B.,  N.  S.,  47,  it  Curtis,  2  C.  &  P.  296.  If  it  be  clear  that 
is  held  that  the  test  whether  a  person  who  the  party,  at  the  time  of  the  acts  and  ad- 
is  not  an  ostensible  partner  in  a  trade  is  missions,  was  not  a  partner,  tliey  will  not 
ticvertbeless,  in  contemplation  of  law,    a  render  him  liable  for  a  prior  debt  of  the 


PART  IV.]  PARTNERSHIP.  439 

two  persons  have  in  many  instances  traded  jointly,  tins  will  be  admis- 
sible evidence  towards  the  proof  of  a  general  partnership,  and  suffi- 
cient, if  the  instances  of  joint  dealing  outweigh  the  instances  of 
separate  dealing,  to  throw  upon  the  defendants  the  burden  of  prov- 
ing that  it  was  not  such  a  partnership.^  And  though  the  partner- 
ship was  established  by  deed,  yet,  against  the  parties,  it  may  be 
proved  by  oral  evidence  of  partnership  transactions,^  or  by  the  books 
of  the  firm.^  But  evidence  of  general  reputation,  or  common  report 
of  the  existence  of  the  partnership,  is  not  admissible,  except  in  cor- 
roboration of  previous  testimony ;  unless  it  be  to  prove  the  fact, 
that  the  partnership,  otherwise  shown  to  exist,  was  known  to  the 
plaintiff.4 

§  484.  A  partnership  may  also  be  proved  against  the  parties,  by 
their  respective  declarations  and  admissions^  whether  verbal,  or  in 
letters,  or  other  writings.  Thus  where,  upon  the  trial  of  the  ques 
tion  of  partnership,  the  defendants,  in  order  to  render  a  witness 
competent,  executed  a  release  to  him,  the  release  was  permitted  to 
be  read  by  the  plaintiff,  as  competent  evidence  in  chief  to  establish 
the  partnership.^  So  also,  an  entry  at  the  custom-house,  by  one 
partner  in  the  name  of  the  firm,  is  admissible,  though  not  conclu- 
sive, evidence  for  the  same  purpose.^  In  other  cases,  the  act,  dec- 
laration, or  admission  of  one  person  is  not  admissible  in  evidence  to 
establish  the  fact  that  others  are  his  partners,  thougji  it  is  ordinarily 
sufficient   to  prove  it  as   against   himself.^     But  if,  in  an  action 

firm.     Siiville  i'.  Eobertson,  4  T.  R.  720.  Manchester    Waterw.    Co.,   2    N.   &    M, 

Nor  will  an  admission  of  a  partnership  in  573. 

one  transaction  bind  the  party  as  a  partner         *  Allen  v.   Rostain,   II    S.   &  R.  362 

in  another  matter  not  connected  with  it.  Whitney  v.  Sterlin<^,  14  Johns.  215;  Ber- 

De  Berkom  v.  Smith,!  Esp.  29.     If  the  nard  w.    Torrance,    5    Gill  &  Johns.  383 

articles  of  copartnership  are  produced  in  See  also  Gowan  z;.  Jackson,  20  Johns.  176 

evidence  against  the  firm,  it  will  be  suffi-  Halliday  v.    McDougall,    20    Wend.   81  : 

cient  to  prove  the  signatures  of  those  who  Brand    v.    Fcrriday,    16   Louis.    R.    296, 

are  parties  to  the  suit.     Beach  v.  Vander-  [Carlton  v.  Ludlow  Woollen  Mills,  1  Wil 

water,  1  Sandf.  S.  C.  R.  265.  hams  (Vt.)  496.] 

1  Newnham  v.  Tethrington,  cited  in  ^  Gibbons  y.  Wilcox,  2  Stark.  43.  And 
Collyer  on  Partn.  p.  450;  Etheridge  v.  see  Parker  v.  Barker,  1  B.  &  B.  9.  Dec- 
Binney,  9  Pick.  272.  The  signature  of  a  larations  made  to  a  third  person  ai'e  ad- 
joint note  by  two  persons  is  no  evidence  of  missible,  though  not  made  in  the  presence 
a  partnership  between  them.  Hopkins  v.  of  the  other  parties.  Shott  v.  Strealfield, 
Smith,  11  Johns.  161.     But  the  signature  1  M.  &  Rob.  8. 

of  the  name  of  a  firm  is  evidence  against         **  Ellis  v.  Watson,  2  Stark.  4i53.     [*The 

the  peison  signing  it,  that  he  is  one  of  the  acts  and  declarations  of  a  person  not  a  part- 

pftrtners.     Spencer  v.  Billing,  3  Campb.  ner  are  not  admissible  to  charge  him  as  a 

312.  partni^r,  without  showing  that  they  were 

^  AJderson  i^.  Clay,  1  Stark.  405;  Wid-  brought  homo  to  the  plaintiff 's  knowledge, 

difield  V.  Widdifield,  2  Binn.  249 ;  Allen  Fitch  v.  Harrington,  13  Gray,  468.] 
r.  Rostain,  11  S.  &  R.  362.  7  Burgue  v.  De  Tastet,  3    Stark.    53; 

3  Richter    v.   Selin,    8    S.    &    R.    425;  Flower  c.  Young,  3  Campb.  240 ;  Tinkler 

Champlin  »•    Tilley,  3  Day,  306  ;  Hill  i;.  v.  Walpole,  14  East,  226  ;  Cooper  (j  South. 


440  LAW   OF  EVIDENCE.  [PART  IV 

against  three  as  partners,  two  have  acknowledged  the  existence  of 
articles  of  copartnership,  which  the  third,  on  due  notice,  refuses  to 
produce  at  the  trial,  the  jury  will  be  warranted  in  finding  the  fact 
of  partnership  upon  this  evidence  alone.^  In  one  case,  where  the 
issue  of  partnership  was  raised  by  a  plea  in  abatement,  for  the 
non-joinder  of  parties  as  defendants,  the  admission  of  liability 
as  a  partner,  by  one  not  joined  in  the  suit,  being  good  in  an  ac- 
tion against  him,  was  held  to  be  also  receivable  on  this  issue,  to 
prove  him  a  partner.^ 

§  485.  The  proof  of  partnership  may  be  answered  by  the  defend- 
ant, by  evidence  of  an  arrangement  between  the  parties,  by  which 
either  the  power  of  the  acting  partner  to  bind  the  firm,  or  the  de- 
fendant's liability  on  the  contracts  of  the  firm,  was  limited,  quali- 
fied, or  defeated  ;  provided  the  plaintiff  had  previous  and  express 
notice.^  The  defendant  may  also  show  that  he  was  not  a  partner 
in  the  particular  trade  in  which  the  transaction  took  place,  and 
that  the  plaintiff  knew  the  fact ;  ^  or,  that  the  partnership  was  pre- 
viously dissolved  ;  or,  that  he  had  notified  the  plaintiff  not  to  deal 
with  his  partner,  without  his  own  concurrence.^ 

§  486.  In  an  action  against  the  administrators  of  a  deceased 
partner,  the  surviving  partner  is  a  competent  witness  to  prove  the 
partnership  ;  for  he  has  no  interest  in  the  matter,  such  an  action 
not  being  maintainable  at  law.^  But  in  an  action  brought  by  the 
surviving  partner  as  such,  the  widow  of  his  deceased  partner  is  not 
a  competent  witness  for  him,  her  testimony  going  to  increase  the 
fund,  of  which  she  is  entitled  to  a  distributive  share.'^  A  dormant 
partner  is  a  competent  witness  for  his  partner  in  an  action  by  the 
latter,  if  he  releases  his  interest  in  the  subject  of  the  suit.^ 

4  Taunt.  802  ;  Whitney  v.  Ferris,  10  Johns,  the  dissolution  of  the  firm,  are  not  admis- 

66 ;  Tuttle  v.  Cooper,  5  Pick.  414  ;  Bob-  sible  against  the  other  parties.     Hogg  v. 

bins  V.  WiUard,  6  Pick.  464 ;  McPherson  Orgill,  34  Penn.  344.] 

t;.  Rathbonc,  7  Wend.  216.    See  a/ite,  Vol.  ^  ]v[i,„^(;ft;   „_    Whitney,    5   Bro.    P.   C. 

1,  §  177  ;  McCutchin  v.  Bankstone,  2  Kel-  489  ;  Collvcr  on  Partn.  214,  456  ;  Ex  parte 

ly,  244;  Grafton  Bank  v.  Moore,    13  N.  Harris,  1  Madd.  583;  Alderson  i-.  Chiy,  1 

Hanip.  99  ;  [Allcott  v.  Strong,    9    Cush.  Canipb.  404. 

523  ;  Button  r.  Woodman,  lb.  255  ;  Chase  *  Jones  v.  Hunter,  Dan.  &  Llovd,  215  ; 

r.  Stevens,  19  N.  H.  465.]  Collyer  on  Partn.  456. 

1  Whitney  v.  Stirling,  14  Johns.  215.  6  Willis  v.  Dy.son,   1    Stark.   164;  Ld 

2  Clay  V.  Langslow,  1  M.  &  Malk.  45.  Galway  v.  Matthew,  10  East,  264. 
Sed  quoire,  and  see  ante,  Vol.  1,  §  395;  ^  Grants.  Shutter,  1  Wend.  148. 
Miller   v.   M'Clcnachan,    1    Yeates,    144.  ^  Allen  v.  Blancluird,  9  Cowen.  631. 
[The  admissions  of  one  partner,  made  after  ^  Clarkson  v.  Carter,  3  Cowen,  84, 


PART  IV.]  PATENTS.  441 


PATENTS. 

[*  §  487.  Remedy  for  infringement  is  an  action  on  the  case.    What  the  plaintiff  mnst 
prove. 

488.  Letters-patent  proved  by  originals  or  copies  of  record  of  same. 

489.  Courts  construe  liberally  the  language  of  patents  and  specifications.     No  pre- 

cise form  of  words  necessary. 

490.  Plaintiff  must  give  some  evidence  of  sufficiency  of  specification. 

491.  Plaintiff  claiming  as  assignee  must  prove  assignment  and  recording  of  same 

in  patent-office. 

492.  Possession  of  patent  prima  facie  evidence  of  priority  of  invention  by  patentee. 

493.  Plaintiff  must  show  that  his  invention  is  new  and  useful,  and  has  been  reduced 

to  practice.     Patent  is  prima  facie  evidence  of  novelty. 

494.  Question  of  utility  is  for  the  jury.     Presumptions  in  regard  to  it. 

495.  Plaintiff  must  show  that  his  invention  has  been  reduced  to  practice,  and  ef- 

fects what  the  specification  professes,  and  in  mode  there  described. 

496.  Plaintiff  must  prove  infringement  and  his  damages,  if  more  than  nominal. 

Presumption  in  favor  of  defendant. 

497.  tTse  of  the  subject  of  a  patent,  prior  to  the  grant  of  patent,  no  infringement. 

498.  Identity  of  defendant's  machine  with  subject  of  patent  must  be  shown.     Ques- 

tion for  jury. 

499.  Licensee  is  a  competent  witness  for  plaintiff. 

500.  Defence  is  ordinarily  made  under  general  issue  with  notice  of  special  matter. 

Special  matter  which  may  be  given  in  evidence. 
^0L  Want  of  novelty  in  plaintiff's  invention,  how  proved. 
501  a.  Originality  of  invention  depends  on  whether  inventor  borrowed  it  from 

source  open  to  the  public,  or  not. 

502.  What  constitutes  public  use  and  exercise  of  an  invention  discussed. 

503.  Other  defences. 

504.  Acquiescence  by  inventor  in  public  use  of  an  invention  before  grant  of  patent 

renders  patent  void. 

505.  Defective  specification  a  defence  admissible  under  general  issue. 

506.  Use  of  any  substantial  part  of  an  invention  an  infringement. 

507.  Patent  too  broad  in  its  specification  may  be  cured  by  disclaimer. 

508.  Persons  wlio  have  used  the  machine,  as  the  defendant  has  done,  are  competent 

witnesses  for  him. 
509  &  510.  Remedy  and  proof  in  case  of  infringement  of  copyright. 
511  &  511  a.  Requisites  to  title  to  copyright. 

512.  Original  manuscript  in  handwriting  of  plaintiff  or  his  amanuensis  generally 

sufficient  evidence  of  authorship. 

513.  Instrument  of  assignment  of  copyright  must  be  proved  or  acknowledged  as 

deeds  of  land  are  required  to  be  proved  or  acknowledged  in  district  where 
copyright  is  recorded,  and  recorded  in  clerk's  office  of  same  district. 

514.  What  constitutes  infringement. 

515.  Defences  to  an  action  for  infringement.] 


442 


LAW   OF  EVIDENCE. 


[part  IV. 


§  487.   The  remody  for  tlie  infringement  of  a  patent  right,  both 
by  statute  and  common  law,  is  by  an  action  on  the  case.^     From 


1  Stat.  U.  S.  1836,  ch.  357,  §  14  ;  1 
Chitty  on  Plead.  131.  The  declaration 
for  the  infringement  of  this  right  is  given 
by  Mr.  Phillips  in  liis  excellent  Treatise  on 
the  Law  of  Patents,  p.  520,  as  follows : 
"  To  answer  to  A  of  B,  in  tlie  county  of  S, 

in  the  district  of ,  manufacturer,  in  a 

plea  of  trespass  on  the  case,  for  that  the 

filaintitf  was  the  original  and  first  inventor 
or  discoverer]  of  a  certain  new  and  useful 
art  [machine,  manufacture,  composition  of 
nuvuter,  or  improvement  on  any  art,  ma- 
chine, &c.,  taking  the  words  of  the  statute 
most  applicable  to  the  subject  of  the  in- 
vention] in  the  letters-patent  hereinafter 
mentioned  and  fully  described,  the  same 
being  a  new  and  useful  [here  insert  the  ti- 
tle or  description  given  in  the  letters-patent] 
which  was  not  known  or  used  before  his 
said  invention  [or  discovery],  and  which 
was  not,  at  the  time  of  his  application  for 
a  patent  as  hereinafter  mentioned,  in  pub- 
lic use  or  on  sale  with  his  consent  or  allow- 
ance ;  and  the  plaintifiF,  being  so  as  afore- 
said the  inventor  [or  discoverer]  thereof, 
and   being   also   a  citizen  of  the  United 

States  [if  the  fact  is  so],i  on  the day 

of [here  insert  the  date  of  the  patent], 

upon  due  application  therefor,  did  obtain 

1  "  It  has  been  suggested,  in  a  preced- 
ing part  of  this  work,  p.  408  "  (says  Mr. 
Phillips  in  his  note  in  this  place),  "that 
the  citizenslii]j  of  the  patentee  need  not  be 
proved  by  the  plaintiff,  and,  if  so,  it  need 
not  be  averred.  This  will,  however,  de- 
pend upon  the  construction  that  shall  be 
given  to  the  15th  section  of  the  act  of 
1836,  c.  357,  by  which,  if  the  patentee  be 
an  alien,  the  defendant  is  permitted  to  give 
matter  in  evidence,  tending  to  sliow  that 
the  patentee  '  has  failed  and  neglected  for 
the  space  of  eighteen  months  from  the  date 
of  the  patent  to  put  and  continue  on  sale 
to  tlie  public,  on  reasonable  terms,  the  in- 
vention or  discovery.'  The  position  re- 
ferred to  in  p.  408  assumes  that  the  bur- 
den on  this  point  is,  in  conformity  to  the 
language  of  thestatute  in  the  first  instance, 
on  the  defendant.  But  to  go  on  the  safer 
side,  the  above  form  of  declaring  assumes 
the  burden  to  be  on  the  plaintiff  to  aver 
and  prove,  in  the  first  instance,  that  the 
patentee  is  a  citizen  of  the  United  States, 
or,  if  an  alien,  and  the  eighteen  months 
have  expired  before  the  date  of  the  writ, 
that  he  has  put  and  continued  the  inven- 
tion on  sale  in  the  United  States  on  rea- 
sonable terms." 

-  "Act  of  4th  of  July,  1836,  ch.  357, 
§5." 


certain  letters-patent  therefor  in  due  form 
of  law  under  the  seal  of  the  Patent-Office 
of  the  United  States,  signed  by  the  Secre- 
tary of  State,  and  countersigned  by  the 
Commissioner  of  Patents  of  the  United 
States,  bearing  date  the  day  and  year  afore- 
said, whereby  there  was  secured  to  him, 
his  heirs,  administrators,  executors,  or  as- 
signs,- for  the  term  of  fourteen  years  from 
and  after  the  date  of  the  patent,  the  full 
and  exclusive  right  and  liberty  of  making, 
using,  and  vending  to  others  to  be  used, 
the  said  invention  [machine,  improvement, 
or  discovery],  as  by  the  said  letters-patent, 
in  court  to  be  produced, ^  will  fully  appear.* 
And  the  plaintiff  further  says,  that  from 
the  time  of  the  granting  to  him  of  the  said 
letters-patent,  hitherto,  he  has  made,  used, 
and  vended  to  others  to  be  used  [or  he 
has  made,  or  has  used,  or  has  vended  to 
others  to  be  used,  as  the  case  may  be],  the 
said  invention  [machine,  improvement,  or 
discovery],  to  his  great  advantage  and 
profit  [or  if  he  has  not  made,  used,  or 
vended,  then,  instead  of  the  above  aver- 
ments, may  be  substituted  after  the  word 
'  hitherto,'  '  the  said  exclusive  right  has 
been  and  now  is  of  great  value  to  him,  to 
wit,  of  the  value  of  $     .']^     Yet  the  said 

8  "  Which  the  plaintiff  brings  here  into 
court."     Chit.  PI.  Vol.  2,  p.  795  (5th  ed.). 

■*  "  The  English  precedents  here  state 
the  making  and  filing  of  the  specification, 
the  assignment  of  the  patent,  and  the  re- 
cording of  the  assignment,  if  the  action  be 
in  the  name  of  an  assignee,  or  if  an  as- 
signee of  part  of  the  right  is  joined. 

"  If  the  patentee  is  an  alien,  and  the 
counsel  chooses  to  declare  very  cautiously, 
if  eighteen  months  have  expired  from  the 
date  of  the  patent,  he  may  here  introduce 
the  averment,  that  within  cighteei^  months 
from  the  date  of  the  patent,  namely,  on, 
&c.  at,  &c.  he  (or  his  assignees)  put  the 
invention  on  sale  in  the  United  States,  on 
reasonable  terms,  and  from  that  time  al- 
ways afterwards  to  the  time  of  jnirchasing 
the  writ,  he  (or  they,  or  he  and  they)  had 
continued  the  same  on  public  sale,  in  the 
United  States,  on  reasonable  terms." 

^  "  The  principle  upon  which  these  aver- 
ments arc  made  is  the  same  as  that  upon 
which,  in  an  action  for  trespass  upon  per- 
sonal property,  the  value  of  the  property 
is  alleged,  by  way  of  showing  tliat  it  was  a 
thing  in  respect  to  which  the  plaintiff 
might  sustain  damage.  Mr.  Gould  says 
of  this  averment:  '  As  he  (the  plaintiff)  is 
not  obliged  to  state  the  true  value,  the  rule 
requiring  it  to  be  stated  would  seem  to  be 


PART  rv.] 


PATENTS. 


443 


the  nature  of  the  action  and  the  tenor  of  the  declaration,  as  stated 
below,  it  is  apparent  that  the  plaintiff,  under  the  general  issue, 
may  be  required,  and  therefore  should  be  prepared,  to  prove,  (1.) 
the  grant  and  issuing  of  the  letters-patent,  together  with  the  speci- 
fication and  the  assignment  to  him,  if  he  claims  as  assignee  ;  (2.) 
that  the  invention  was  that  of  the  patentee,  and  was  prior  to  that 
of  any  other  person  ;  (3.)  that  it  is  new  and  useful,  and  has  been 
reduced  to  practice ;  (4.)  that  it  has  subsequently  been  infringed 
by  the  defendant;  and  the  damages,  if  any  beyond  a  nominal 
sum  are  claimed. 

§  488.  (1.)  The  letters-patent,  to  which,  in  the  United  States,  a 
copy  of  the  specification  is  annexed  as  a  part  thereof,  are  proved 
either  by  the  production  of  the  originals,  or  by  copies  of  the  record 
of  the  same,  under  the- seal  of  the  patent-office,  and  certified  by 
the  Commissioner  of  Patents,  or,  if  his  ofiice  be  vacant,  by  the 
chief  clerk.i     If  the  patent  is  for  an  improvement,  and  the  specifi- 


D,  well  knowings  the  premises,  but  contriv- 
ing to  injure  the  plaintiff,^  did  on  the 
[some  day  after  the  date  of  the  patent]  and 
at  divers  times  before  and  afterwards,  dur- 
ing the  said  term  of  fourteen  years  men- 
tioned in  said  letters-patent,  and  before  the 
purchase  of  this  writ,  at  C,  in  the  county 
of  M.,  in  the  said  district  of ,  unlaw- 
fully and  wrongfully,  and  without  the  con- 
sent or  allowance,  and  against  the  will  of 
the  plaintiff,  make  [use,  and  vend  to  oth- 
ers to  be  used,  or  did  make,  or  did  use,  or 
did  vend  to  others  to  be  used,  as  the  case 
may  be]  the  said  invention  [machine,  im- 
provement, or  discovery],  in  violation  and 
infringement  of  the  exclusive  right  so  se- 
cured to  the  plaintiff  by  said  letters-patent 
as  aforesaid,  and  contrary  to  the  form  of 
the  statutes  of  the  United  States  in  such 
case  made  and  provided,  whereby  the 
plaintiff  has  been  greatly  injured,  and  de- 
prived of  great  profits  and  advantages, 
which  he  might  and  otherwise  would  have 
derived  from  said  invention  ;  and  has  sus- 

of  no  great  practical  use.'  Gould's  PI.  ch. 
4,  §  37,  p.  187.  Mr.  Chitty  says,  the  above 
averments  as  to  profit  by  making,  using, 
and  vending  are  sometimes  omitted.  The 
propriety  of  making  the  averment  of  the 
value  seems  to  depend  upon  the  question 
whether  the  allegation  of  ownership  of  an 
article  or  species  of  personal  property,  or 
interest  in  it,  and  possession  of  it,  imports 
a  value  to  the  plaintiff,  without  specifically 
alleging  its  value ;  for  if  it  does,  then  a 
ground  of  action  distinctly  appears,  with- 
out any  such  specific  allegation." 


tained  actual  damage  to  the  amount  of 

,  and,  by  force  of  the  statute  aforesaid, 

an  action  has  accrued  to  him,  to  recover 
the  said  actual  damage,  and  such  addition- 
al amount,  not  exceeding  in  the  whole 
three  times  the  amount  of  such  actual  dam- 
ages,- as  the  court  may  see  fit  to  order  and 
adjudge.  Yet  the  said  D,  though  request- 
ed, has  never  paid  the  same,  or  any  part 
thereof,  to  the  plaintiff,  but  hath  refused, 
and  vet  refuses  so  to  do." 

1  Stat.  U.  S.  1836,  ch.  357,  §§  4,  5.  By 
this  act,  no  letters-patent  are  to  be  issued 
until  the  specification  is  filed ;  which  it  is 
the  duty  of  the  clerk  to  enroll ;  and  there- 
fore no  particular  evidence  of  the  enrol- 
ment is  required  on  the  part  of  the  plain- 
tiflf.  But  in  England,  where  the  letters- 
patent  are  issued  before  the  specification  is 
filed,  the  party  is  bound  to  see  to  the  en- 
rolment of  his  specification  within  a  limited 
time,  and  therefore  is  bound  to  show  that 
this  requirement  has  been  complied  with. 
Ex  parte  Beck,  1   Bro.   Ch.  R.   578 ;  Ex 

1  " '  Contriving  and  wrongfully  intend- 
ing to  injure  the  plaintiff,  and  to  deprive 
him  of  the  profits,  benefits,  and  advan- 
tasres  which  he  might  and  othenvise  would 
have  derived  and  acquired  from  the  mak- 
ing, using,  exercising,  and  vending  of  the 
said  invention,  after  the  making  of  the  said 
letters-patent,  and  within  the  said  term  of 
fourteen  years  in  said  letters-patent  men 
tioned.'"  Chit.  PI.  (5th  ed.)  Vol.  2 
p.  766. 

2  "Act  of  4th  of  July,  1836,  ch.  35* 
§  14." 


444  LAW   OF  EVIDENCE.  [PART  IV 

cation  refers  to  the  former  patent,  without  which  it  is  not  sufficiently 
clear  and  intelligible,  the  former  patent  with  its  specification  must 
also  be  produced.^  Where  the  proof  is  by  an  exemplification,  it 
must  be  of  the  whole  record,  and  not  of  a  part  only.  The  draw- 
ings, if  any,  must  be  produced,  whenever  they  form  part  of  the 
specification. 

§  489.  As  letters-patent  are  not  granted  as  restrictions  upon 
the  rights  of  the  community,  but  to  promote  science  and  the  useful 
arts,2  the  courts  will  give  a  liberal  construction  to  the  language  of 
patents  and  specifications,  adopting  that  interpretation  which  gives 
the  fullest  effect  to  the  nature  and  extent  of  the  claim  made  by  the 
inventor.3  The  meaning  is  a  question  for  the  court,  the  words  of 
art  having  been  interp-eted  by  the  jury.*  If  there  is  any  obscurity 
in  them,  reference  may  be  had  to  the  affidavit  of  the  patentee, 
made  and  filed  prior  to  the  issuing  of  the  patent.^  No  precise 
form  of  words  is  necessary,  provided  their  import  can  be  clearly  as- 
certained by  fair  interpretation,  even  though  the  expressions  may 
be  inaccurate.^  But  if  the  claim  is  of  an  abstract  principle  or 
function  only,  detached  from  machinery,  it  is  void.'^ 

§  490.  The  plaintiff  must  give  some  evidence  of  the  sufficiency 
of  the  specification,  if  denied  ;  such  as,  the  evidence  of  persons  of 
science,  and  workmen,  that  they  have  read  the  specification,  and 
can  understand  it,  and  have  practised  the  invention  according  to 
it ;  and  such  evidence  will  be  sufficient,  unless  the  defendant  can 
show  that  persons  have  been  misled  by  the  specification,  or  have 
incurred  expense  in  attempting  to  follow  it,  and  were  unable  to 
ascertain  what  was  meant.^     Tlie  sufficiency  of  the  specification,  in 

parte  Koops,  6  Ves.  599  ;  Watson  v.  Pears,  44;  Winans  v.  Denmead,  15  How.  U.  S. 

2  Campb.  294.     [*By  act  of  1861,  ch.  88,  330.] 

§  15,  it  is  enacted,  "  that   printed  copies  *  Ncilson  v.  Harford,  8  M.  &  W.  806. 

of  the  letters-patent  of  the  United  States,  ^  Pettibone  v.  Dcrriffer,  4  Wash.  215. 

Avith  the  seal  of  the  office  affixed  thereto  ^  Wyeth  v.  Stone,  1  Story,  11.  273  ;  Min- 

and  cci-tified  and  signed  by  the  Commis-  ter  u.  Mower,  Webst.  Pat.  Cas.  138,  141  ; 

sioner  of  Patents,  shall  be  legal  evidence  6  Ad.  &  El.  735,  S.  C. ;  Derosne  v.  Fairie, 

of  the  contents  of  said  letters-patent  in  all  Id.  154,  157  ;  5  Tyrw.  393  ;  1  M.  &  Rob. 

cases."]  457,  S.  C.     [And  the  specification  is  to  bo 

1  Lewis  V.  Davis,  3  C.  &  P.  502  ;  Pliil-  construed  according  to  the  true  import  of 
lips  on  Patents,  pp.  401,  402  ;  [Kittle  v.  the  words  used,  rather  than  by  their  grain- 
Merriam,  2  Curtis,  C.  C.  475  ;  Parker  v.  matical  arrangement.  Allen  v.  Hunt,  6 
Stiles;  5  McLean,  44.1  McLean,  303.] 

2  Blanchard  v.  Sprague.  3  Sumn.  ^  Blanchard  v.  Sprague,  3  Sumn.  535 . 
535,  Wyeth  v.  Stone,  1   Story,  R.  273  ;  Lowell 

8  Eyan    v.    Goodwin,    3    Sumn.    514.  v.  Lewis,  1  Mason,  187;"Earle  v.  Sawyer, 

Where  a  patent  is  granted  for  a  term  of  4  Mason,  1  ;  Phillii)s  On  Patents,  pp.  95  - 

years,  tlie  day  of  the  date  of  the  patent  is  100,  109-  113  ;  Godson  on  Patents,  ch.  ill. 

reckoned  inclusive.  Russell  v.  Ledsman,  9  sect.  v. ;  [Smith  v.  Ely,  5  McLean,  76.] 

Jur.  557,  558 ;  Parker  v.  Stiles,  5  McLean,  8  Turner  v.  Winter,  I  T.  R.  602  ;  Cor- 


PART  IV.]  PATENTS.  445 

matters  of  description,  is  a  question  for  the  jurj.^  If  a  wliole  class 
of  substances  be  mentioned  as  suitable,  the  plaintiff  must  show 
that  each  and  every  of  them  will  succeed  ;  for  otherwise  the  diffi- 
culty of  making  the  instrument  will  be  increased,  and  the  public 
will  be  misled.^  But  if  the  title  describes  the  patent  to  have  been 
granted  for  improvements,  in  the  plural,  whereas  the  specification 
discloses  only  one  improvement,  it  is  no  variance.^  The  object  of 
the  specification  is,  that  after  the  expiration  of  the  term  the  public 
shall  have  the  benefit  of  the  discovery.*  It  must  be  understood 
according  to  the  acceptation  of  practical  men  at  the  time  of  its  en- 
rolment ;  and  be  such  as,  taken  in  connection  with  the  drawings, 
if  any,  to  wbich  it  refers,  will  enable  a  skilful  mechanic  to  perform 
the  work.^  If  it  contain  an  untrue  statement  in  fact,  which,  if 
literally  acted  upon  by  a  competent  workman,  would  mislead  him, 
and  cause  the  experiment  to  fail,  it  is  bad,  even  though  a  compe- 
tent workman,  acquainted  with  the  subject,  would  perceive  and  in 
practice  correct  the  error.^ 

§  491.  Besides  the  formal  proof  of  the  assignment,  where  the 
plaintiff  claims  as  assignee,  he  must  show  that  the  assignment  has 
been  recorded  in  the  patent-office,  before  he  can  maintain  any 
suit,  either  at  law  or  in  equity,  either  as  sole  or  joint  plaintiif,  at 
least  as  against  third  persons.'^ 

§  492.  (2.)  The  next  step  in  the  plaintiff's  proof  is  to  show, 
that  the  invention  is  original,  and  his  own,  and  prior  to  any  other. 


nish  V.  Keene,  3  Bing.  N.  C.  570 ;  4  Scott,  able   imitations.     McCormick  v.  Manny, 

337,  S.  C.     See,  on  the  requisites  of  a  suf-  6  McLean,  539.] 

ficicnt   specification,  Phillips   on  Patents,         ^  Neilson  v.  Harford,  8  M.  &  W.  806. 

ch.  11;  Godson   on  Patents,  ch.  4.     See  [In  construing  the  specification  of  claim  in 

also    Bickford    v.    Skewes,    Webst.    Pat.  letters-patent,  the  entire  specification  and 

Cas.    219  ;     Househill     Co.    v.    Neilson,  drawings  are  to  be  examined,  and  though 

Id.   692.      [*  Cnrtis   on   Patents,   3d   ed.  there  is  an  error  in  showing  how  a  partic- 

§  478. 1  ular  element  enters  into  the  combination 

1  Walton  V.  Potter,  "Webst.  Pat.  Cas.  claimed,  if  the  residue  of  the  specification 
595  ;  [Battin  v.  Taggart,  17  How.  U.  S.  and  the  drawing  afford  means  to  correct 
74;  Hogg  V.  Emerson,  ll  lb.  587.]  this  mistake,  it  does  not  avoid  the  letters- 

2  Bickford  ».  Skewes,  6  Jur.  167;  1  Gale  patent.  Kittle  v.  Merriam,  2  Curtis,  C. 
&  D.  736,  S.  C.  C.  475.] 

8  Nickels  v.  Haslam,  7  M.  &  G.  378.  "^  "Wyeth  v.  Stone,  1  Story,  R.  273.  [An 
*  Liardet  v.  Johnson,  Bull.  N.  P.  76 ;  invention  may  be  assigned  as  well  before 
Newbeny  v.  James,  2  Meriv.  446.  as  after  the  application  for  a  patent,  but 
^  Crossly  v.  Beverly,  9  B.  &  C.  63  ;  3  the  patents  must  be  applied  for  and  issued 
C.  &  P.  513,  S.  C. ;  Bloxam  v.  Elsee,  1  C.  in  the  name  of  the  inventor,  and  when  ob- 
&  P.  558;  6  B.  &  C.  169;  Morgan  v.  Sea-  tained  it  will  inure  to  the  benefit  of  the 
ward,  2  M.  &  W.  544.  [The  woi'ds  "  or  assignee.  Rathbone  v.  Orr,  5  McLean, 
the  equivalent  therefor,"  in  a  claim,  cannot  131.  It  seems  that  a  license  to  run  a  pat- 
apply  to  another  invention  differing  in  ented  machine,  not  being  considered  a  per 
arrangement  and  principle,  but  equivalent  sonal  privilege,  is  assignable.  Wilson  v 
Va  result.     The  words  embrace  only  color-  Stolly,  5  McLean,  1.] 


446  LAW   OF  EVIDENCE.  [PART  IV. 

Of  this  point,  as  the  applicant  for  a  patent  is  required  to  make 
affidavit  of  the  fact  before  the  patent  is  issued,  the  possession 
of  the  patent  has  been  held  prhna  facie  evidence,  in  a  sch'e  facias 
for  its  repeal ;  ^  and  it  is  now  held,  that  the  oath  of  the  patentee, 
made  diverso  intuitu,  that  he  was  the  true  and  first  inventor,  may 
be  opposed  to  the  oath  of  a  witness  whose  testimony  is  offered  to 
the  contrary,  in  an  action  for  infringement  of  the  right.^  The 
person  who  first  suggests  the  principle  is  the  true  and  first  in- 
ventor,^ provided  he  has  also  first  perfected  and  adapted  the  inven- 
tion to  use ;  for  until  it  is  so  perfected  and  adapted  to  use,  it 
is  not  patentable.*  In  a  race  of  diligence  between  two  indepen- 
dent and  contemporaneous  inventors,  he  who  first  reduces  his 
invention  to  a  fixed  and  positive  form  has  the  priority  of  title 
to  a  patent  therefor.  But  if  the  first  inventor  is  using  reasonable 
diligence  in  adapting  and  perfecting  his  invention,  he  will  have 
the  prior  right,  notwithstanding  a  second  mventor  has  in  fact  first 
perfected  the  same,  and  first  reduced  it  to  practice  in  a  positive 
form.^  The  language  of  the  statute,^  "  not  known  or  used  by 
others  before  his  or  their  discovery  thereof,"  does  not  require  that 
the  invention  should  be  known  or  used  by  more  than  one  person, 
but  merely  indicates  that  the  use  should  be  by  some  other  person 
or  persons  than  the  patentee.'^ 

§  493.  (3.)  It  must  also  be  shown,  by  the  plaintiff,  that  the 
invention  is  new  and  useful,  and  that  it  has  been  reduced  to  prac- 
tice.^ The  fact  of  novelty  does  not  necessarily  follow  from  the 
fact  of  its  invention  by  the  patentee ;  for  there  may  have  been 

1  Stearns    v.   Barrett,    1    Mason,    153.  ^  st^t.  U.  S.  1836,  ch.  357,  §  6. 

And  see  Minter  v.  Wells,  Webst.  Pat.  Cas.  ^  Reed  v.  Cutter,  1  Story,  500.     [*  Par- 

129  ;  5  Tyrw.  163.     On  the  same  principle  kerr.  Stiles,  5  McLean,  61";  Evans  v.  Eat- 

it  has  been  held  in   England,  irrespective  on,  3  Wheaton,  454 ;  and  case  in  Circuit 

of  any  oath  of  the  party,  that  the  introdu-  Court  in  Connecticut,  cited  by  Mr.  Justice 

cer  is  prima  facie  the  inventor.     Minter  v.  Nelson   in    Hotchkiss   v.    Greenwood,    1 1 

Hart,  Webst.  Pat.  Cas.  131.  Howard's  Rep.  248,  266.     See  also  Gavlor 

-  Alden  v.  Dewey,  1    Story,   R.   336  ;  v.  Wilder,  10  Howard,  U.  S.  R.  477,  where 

ante,  Vol.  1,  §  352  ;  Woodworth  v.  Slier-  it  is  held  by  a  majority  of  the  court,  that  a 

man,  1   Story,  R.  171.  prior  construction   and   use   of  the  thino^ 

*  Minter  v.  Hart,  Webst.  Pat.  Cas.  131.  patented,  in  one  instance  only,  which  had 

*  Reed  v.  Cutter,  1  Story,  R.  590;  Bed-  been  finally  forootten,  or  abandoned,  and 
ford  V.  Hunt,  1  JIason,  .■i02  ;  Woodcock  v.  never  made  public,  so  that,  at  the  time  of 
Parker,  1  Gallis.  438  ;  [Thomas  c.  Weeks,  the  invention  by  the  patentee,  the  inven- 
2  Paine,  C.  C.  92  ;  Allen  v.  Hunter,  6  tion  did  not  exist,  will  not  render  a  patent 
McLean,  303  ;    In  re  Lowe's   Patent,   35  invalid.] 

Eng.  Law  and  Eq.  325.J  8  fhc  fiicts  being  undisputed,  the  qnes- 

'"  Ibid.    See,  as  to  the  novelty  and  origi-  tion  whether  the   invention  is  new  is  for 

nality  of  invention,   Phillips  on   Patents,  the  court.     Morgan  v    Seaward,  2  M.  & 

pp.  6'5,  66,  150-168;  Godson  on  Patents,  W.  544  ;  Webst.  Pat.  Cas.  172. 
pp.  36-50. 


PABT  IV.]  PATENTS  447 

several  inventors  of  the  same  thing,  independent  of  each  other. 
But  the  question  of  novelty,  in  our  practice,  can  hardly  arise  upon 
opening  the  plaintifif's  case,  inasmuch  as  the  patent  itself,  issued 
as  it  is  upon  the  oath  of  the  applicant,  that  tlie  invention  is  new, 
seems  to  hQ  prima  facie  evidence  of  that  fact.^  It  is  sufficient  un- 
der the  statute  of  the  United  States,  though  it  is  otherwise  in 
England  and  France,  if  it  appears  that  the  thing  in  question  was 
not  known  or  used  before  the  invention  thereof  by  the  patentee, 
though  it  may  have  been  used  prior  to  the  date  of  the  patent.* 
Nor  is  it  necessary  to  the  validity  of  the  patent,  that  any  of  the 
ingredients  should  be  new  or  unused  before  for  the  purpose ;  the 
true  question  being,  whether  the  combination  of  them  by  the 
patentee  is  substantially  new.^ 

§  494.  The  question  of  utility  is  a  question  for  the  jury ;  who 
have  frequently  found,  that  all  that  was  new  in  a  patent  was 
immaterial  or  useless.*  It  will  be  sufficient,  however,  if  the 
amount  of  invention  and  of  utility,  taken  together,  be  considera- 
ble. Novelty  may  frequently  exist  without  utility ;  but  great 
utility  cannot  be  conceived  to  exist  without  novelty.  Hence  great 
utility  does  of  itself,  for  all  practical  purposes,  constitute  novelty ; 
and  the  latter  may  be  assumed  wherever  the  former  is  proved  to 
exist  in  any  degree.  Ordinarily,  both  may  be  proved  by  the 
testimony  of  persons  well  conversant  with  the  subject,  to  the  effect 
that  they  had  never  seen  or  heard  of  the  invention  before,  and 
that  the  public  had  given  large  orders  for  the  article,  or  that 
licenses  had  been  taken  for  the  exercise  of  the  right.^  If  the 
invention  has  never  gone  into  general  use,  or  has  never  been  pur- 
sued, it  is  a  presumption  against  its  utility.^ 

§  495.   The   plaintiff  must   also   show  that  the  invention  has 

1  Phillips    on    Patents,   pp.    406,   407  ;  and  unless  the  invention  be  shown  to  be 

[Parker  v.  Stiles,  5  McLean,  44.]  absolutely    frivolous    and    worthless,   the 

'^  Id.  150-164,407.  patent  is  valid.     Parker  v.  Stiles,  .5  Mc- 

s  Eyan  v.  Goodwin,  3  Sunin.  R.  514;  Lean,  44 ;  Manny  v.  Jag^ger,  1  Blatch.  C. 

[Newton  v.  Vaucher,  11  Eng.  Law  &  Eq.  C.  372.] 

589;  Electric   Telegraph    Co.  v.  Brett,  4  ^  Webster  on   Patents,  pp.  10,  11,30; 

lb.  347  ;  Bush  v.  Fox,  26  lb.  464.]  Cornish  v.  Keene,  3  Bing.  N.  C.  570 ;  4 

*  By  "  useful "  is  meant,  not  as  superior  Scott,  337,  S.  C. ;  Galloway  n.  Bleaden, 
to  all  other  modes  now  in  practice,  but  as  Webst.  Pat.  Cas.  526 ;  1  M.  &  G.  247. 
opposite  to  frivolous  or  miscliievous  inven-  And  see  Hill  v.  Thompson,  8  Taunt.  375; 
tions,  or  inventions  injurious  to  the  moral  Holt,  Cas.  636 ;  Earle  v.  Sawyer,  4  Ma- 
health  or  good  order  oif  society.     Lowell  v.  son,  6. 

Lewis,  I  Mason,  182;  Bedford  v.  Hunt,  ^  Morgan  v.  Seaward,  2  M.  &  W.  544  ; 

Id.  302.     [Upon  the  question  of  the  utility  1  Jur.  527  ;  Minter  v.  Mower,  6  Ad.  &  EI. 

of  an  invention,  courts  arc  not  rigid;  the  735;  Simister's  patent,  Webst.  Pat.  Cas 

patent  raises  the  presumption  of  utility,  723. 


448  LAW   OF  EVIDENCE.  [PART  IV. 

been  reduced  to  practice,  and  that  it  effects  what  the  specification 
professes,  and  in  the  mode  there  described.  For  the  thing  to 
be  patented  is  not  a  mere  elementary  principle,  or  intellectual 
discovery,  but  a  principle  put  in  practice,  and  applied  to  some 
art,  machine,  manufacture,  or  composition  of  matter.^ 

§  496  (4.)  The  plaintiff,  lastly,  must  prove  the  infringeinent  of 
his  right  by  the  defendant,  before  the  commencement  of  the 
action,  together  with  his  damages'^  if  he  claims  any  beyond  a 
nominal  sum.  On  the  point  of  infringement,  the  presumption 
is  in  favor  of  the  defendant.  The  statute  secures  to  the  patentee 
"the  exclusive  right  of  making,  using,  and  vending  to  others 
to  be  used,  the  invention  or  discovery."  ^  It  will  be  sufficient, 
therefore,  to  prove  the  making  of  the  thing  patented,  for  use  or 
sale,  though  the  defendant  has  never  either  used  or  sold  it.*  In 
the  proof  of  using,  which  is  a  matter  of  great  delicacy,  a  distinction 
is  to  be  observed  between  the  use  of  an  article  about  or  upon 
which  a  patented  material  or  machine  has  been  employed,  and  the 
act  of  applying  such  material  or  machine.  It  is  the  latter  only 
which  is  a  violation  of  the  right.  Thus,  if  a  carriage  has  been 
finished  with  patented  paint,  it  is  the  builder,  and  not  the  pur- 
chaser, who  violates  the  right  of  the  patentee.^  So,  where  a  quan- 
tity of  wire  watch-chains  were  made  to  order,  in  the  manufacture 
of  which  a  patented  instrument  was  unlawfully  used,  it  was  held 

1  Earle  v.  Sawyer,  4  Mason,  1,  6,  per  profits,  not  what  he  might  have  made  by 
Story,  J. ;  Phillips  on  Patents,  ch.  7,  §  8,  reasonable  diligence.  Dean  v.  Mason,  20 
pp.  109-112,  409;  [Goodyear  v.  Day,  2  How.  U.  S.  R.  198;  Livingston  v.  Wood- 
Wallace,  Jr.,  283  ;  Parkhurst  v.  Kinsman,  worth,  15  lb.  S46.] 

1  Blatch.  C.  C.  488.]  ^  Stat.   1836,  ch.  357,  §  5.     Merely  ex- 

2  [*  In  cases  where  there  is  no  estab-  hibiting  for  sale  is  no  infnngement.  Mm- 
lished  patcntor  license  fee,  general  evidence  tcr  v.  Williams,  4  Ad.  &  El.  251  ;  5  Nev. 
may  be  resorted  to  in  order  to  get  at  the  &-  M.  647,  S.  C. 

measure  of  damages;  and  evidence  of  the  *  Whittemore  v.    Cutter,    1    Gall.  429. 

utility  and  advantage  of  the  invention  over  In  Boyce  v.  Dorr,  3  McLean,  528,  it  was 

the  old  modes  or   devices   that  had  been  held,  that,  if  the  maker  was  ignorant  that 

used   for   working  out   similar  results  is  it  had  been  patented,  none   but  nominal 

competent  and  appropriate.     Suffolk  Com-  damages  should  be   given.      And   it  has 

pany   v.   Haydcn,  3  Wall.ace,  U.  S.  315;  been  held  in  the  court  of  Exchequer,  that 

Seymour  v.  McCormick,  16  How.  U.  S.  R.  if  a  patent  has  been  infringed  unintcntion- 

485.     Counsel  fees  are  not  a  proper  ele-  ally,  the  patentee   is   not  entitled  to  any 

ment  for  the  consideration  of  the  jury  in  redress.     But  this  doctrine  has  been  dis- 

estimation  of  damages.     Tccse  c.  Hunting-  approved.     See  Heath  v.  Unwin,  15  Sim. 

don,  23  How.  U.  S.  R.  2.     The  plaintiff  552  ;  11  Jur.  420  ;  16  Law  J.  383,  Chan, 

must  furnish  some  data  by  which  the  jury  [A  sale  of  the  thing  patented  to  an  agent 

may  estimate   the  actual  damage.     If  he  of  the  patentee  employed  by  him  to  make 

rests  his  case  after  merely  proving  an  in-  the  purchase,  on  account  of  the  patentee, 

fringement  of  his  patent,  lie  may  be  enti-  is   not  per  se   an  infringement,  although, 

tied"  to    nominal    damaucs,  hut  "no  more,  accompanied   by   other   circumstances,    it 

New  York  v.  Hansom,  23  How.  U.  S.  K.  may  be  evidence  of  an  infringement.     By- 

487.     The  rule  of  damages  is  the  amount  am  o.  Bullard,  1  Curtis,  C.  C.  100.] 

which   the  infringer  actually  realized  in  ^  phuiips  on  Patents,  pp.  361 -363. 


PART  IV.J  PATENTS.  449 

that  the  manufacturer  alone  was  liable  to  the  patentee,  though  the 
purchaser  knew  that  the  instrument  in  question  was  used,  and 
approved  of  its  use.^  But  where  the  defendant  ordered  the  goods 
to  be  manufactured  by  the  plaintiff's  process,  which  goods  he 
afterwards  received  and  sold,  he  was  held  liable. ^  The  use  of  the 
article  merely  for  philosophical  experiment,  or  for  the  purpose  of 
ascertaining  the  verity  and  exactness  of  the  specification,  is  not 
an  infringement  of  the  right.^  As  to  the  fact  of  using,  it  may 
here  be  observed,  that,  though  this  ordinarily  is  proved  only  by 
direct  evidence,  yet  the  conduct  of  the  defendant,  in  refusing 
to  permit  the  manner  of  his  manufacture  and  course  of  his  oper- 
ations to  be  inspected,  is  admissible  in  evidence,  as  furnisliing  a 
presumption  that  he  has  infringed  the  plaintiff's  right.  If  the 
article  made  by  the  defendant  agrees  in  all  its  qualities  with  one 
made  upon  the  plaintiff's  plan,  it  is  prima  fade  evidence  that  it 
was  so  made.* 

§  497.  If  the  use  of  the  machine  or  other  subject  of  the  patent 
is  shown  to  have  been  prior  to  the  grant  of  the  patent,  it  is  no 
infringement ;  but  it  cannot  be  afterwards  continued.  So,  if 
a  patent  proves  to  be  void,  on  account  of  a  formal  defect  in  the 
specification,  for  which  reason  it  is  surrendered,  and  a  new  patent 
is  taken  out ;  but  in  the  interim,  another  person,  without  license, 
erects  and  uses  the  thing  invented,  his  continued  use  of  it,  after  the 
second  patent  is  issued,  will  be  an  infringement  of  the  right ;  but 
he  will  not  be  liable  for  the  intermediate  use,  before  the  issuing  of 
the  second  patent.^  And  the  law  is  the  same,  where  a  patent,  origi- 
inally  void,  is  amended  by  filing  a  disclaimer,  under  the  statute.® 

§  498.  It  must  also  appear  that  the  machine  used  by  the  de- 
fendant is  identical  with  the  subject  of  the  patent.  Machines  are 
the  same  if  they  operate  in  the  same  manner,  and  produce  the 
same  results,  upon  the  same  principles.^     If  the  differences  be- 

1  Kcplinger  v.  De  Younjj,  10   Wheat,     original  equipment  in  a  foreign  country, 
858  ;  Boyd  v.  McAlpen,  3  McLean,  427.        by  persons  not  within   the  jurisdiction  of 

2  Gibson  v.  Brand,  4  M.  &  G.  179  ;  Ibid,     our  patent  laws,  it  was  iield  that  such  use 
'  Whittemore   v.  Cutter,  1    Gall.  429;     of  the  gaffs  was  not  an  infringement  of  the 

Phillips  on  Patents,  p.  366.  patent.     Brown  v.  Duchesne,  2  Curtis,  C. 

*  Huddart  v.    Grimshaw,    Webst.  Pat.  C  371.] 

Cas.  91  ;  Hall  v.  Jan-is,  Id.  102  ;  Godson  ^  Ames  v.  Howard,  1  Sumn.  482 ;  Phil- 

on    Patents,   p.    242  ;    Gibson   v.   Brand,  lips  on  Patents,  pp.  368,  370 ;  Dixon  ». 

Webst.   Pat.  Cas.  627,  630.     [A   French  Moyer,  4  Wash.  68. 

vessel   was   rigged   in   France  with   gaffs  *'  Perry  v.  Skinner,  2  M.  &  W.  471  ;  I 

which  had  been   patented   in  the  United  Jur.  433,  S.  C. ;  Stat.  U.  S.  1837,  ch.  45, 

States,  and  so  rigged  came  into  one  of  our  §§  7,  9,   which   is  essentially  similar  to 

ports  ;  but  as  the  gaffs  were  placed  on  the  Stat.  5  &  6  W.  4,  ch.  83,  §  1. 

vessel  when  she  was  built,  as  part  of  her  i  Gray  v.  Osgood,  1  Pet  C.  C.  R.  394-' 
VOL.  II.                                  29 


450  LAW   OF  EVIDENCE.  [PART  IV. 

tween  the  two  machines  are  substantial,  they  are  not  alike ;  but 
if  formal  only,  then  they  are  alike.  To  this  point  the  opinion 
of  experts  is  admissible  in  evidence ;  ^  but  it  is  still  only  matter 
of  opinion,  to  be  weighed  and  judged  of  by  all  the  other  circum- 
stances of  the  case.  The  question  whether  the  principles  are  the 
same  in  both  machines,  when  all  the  facts  are  given,  is  rather  a 
matter  of  law  than  of  the  opinion  of  mechanics ;  ^  but  the  general 
question  of  identity,  as  well  as  the  general  question  of  infringe- 
ment, being  a  mixed  question  of  law  and  fact,  is  submitted  to 
the  jury,  under  proper  instructions  from  the  court.* 

§  499.  The  purchaser  of  a  license  to  use  an  invention  is  a  com- 
petent ivitness  for  the  plaintiff  in  an  action  for  infringement  of  the 
patent  right ;  for  he  has  no  direct  pecuniary  interest  in  supporting 
the  patent,  but,  on  the  contrary,  it  may  be  for  his  advantage  that 
it  should  not  be  supported.^  [*  The  plaintiff  is  also  a  competent 
witness  for  himself,  if  allowed  to  testify  by  the  laws  of  the  State 
within  whose  limits  the  court  is  sitting.^] 

§  500.  The  defence,  in  an  action  for  infringement  of  a  patent 
right,  is  usually  directed  either  to  the  patent  itself,  in  order  to  in- 
validate the  plaintiff's  title,  or  to  the  fact  of  its  violation  by  the 
defendant ;  and  it  is  ordinarily  made  under  the  general  issue,  with 
notice  of  special  matter  to  be  given  in  evidence,  which  the  statute 
permits.'^     The  notice  of  special  matter  must  have  been  given  to 

Udiorne  v.  "Winkley,  2  Gall.  51.     A  wit-  as  matter  of  evidence."    Grier,  J.    Winans 

ness,   who   has   previously   constructed   a  v.  New  York  &  Erie  Railroad  Company, 

macliine  like  the  plaintiff's,  may  look  at  a  21  Howard,  U.  S.  R.  100.] 

drawing,   not  made  by  himself,  and   say  ^  Barrett  v.   Hall,  1   Mason,  470,  471. 

whether  he  has  such  a  recollection  of  the  And  see  Morgan  v.  Seaward,  "\Vebst.  Pat. 

machine,  as  to  be  able  to  say  that  it  is  a  Cas.  171. 

correct   drawing  of  it.     Rex  v.  Haddcn,  2  *  Ibid. ;    Morgan   v.   Seaward,    Webst. 

C.  &  P.  184.  Pat.    Cas.    168;  Jupe   v.  Pratt,   Id.  146; 

2  [*"  Experts  may  be  examined  to  ex-  Maenamara   v.  Hulse,  1   Car.  &  Marshm. 

plain  terms  of  art,  and  the  state  of  the  art  471  ;  Boulton  v.  Bull,  2  H.  Bl.  480. 

at  any  given  time.     They  may  explain  to  ^  Derosne  v.  Fairie,  Webst.  Pat.    Cas. 

the  court  and  jury  the  machines,  models,  154;    1    M.  &  Rob.  457,    S.  C. 

or  drawings  exhibited.     They  may  point  ^  [*  Vance  v.  Campbell,  1  Black.  U.  S. 

out  tiie  difference  or   identity  of  the  me-  R.   427  ;    Haussknecht  v.    Claypool,    lb. 

clianical  devices  involved  in  tlieir  construe-  431.] 

tion.      The  maxim   of  cuique  in  sua  arte  "^  Where  the  defendant  pleaded,  1.  Not 

credenduni  permits  them  to  be  examined  as  guilty  ;   2.  that  the  plaintiff  was   not  the 

to  questions  of  art  or  science  peculiar  to  true   and  first  inventor;    3.  that   the   in- 

their  trade  or  profession  ;  but  professors  or  vention  had  previously  been  wholly,  or  in 

mechanics  cannot  be  received  to  prove  to  part,  pnblicly  and  generally  known,  usea, 

th3  court  or  jury  what  is  the   proper  or  practised,  and  published  ;  it  was  held,  that 

legal   construction  of  any   instrument   of  the  issue  on  the  first  plea  must  be   deter- 

writing.     A  judge  may  obtain  information  mined  by  the  acts  done  by  the  defendant, 

from  them,  if  he  desire  it,  on  matters  which  without    reference   to    the   intention    with 

he  does  not  clearly  comprehend,  but  can-  which    they  were   done  ;  that   the  second 

not  be  compelled  to  receive  their  opinions  plea  would  be  proved  by  allowing  a  publi- 


PART  IV.]  PATENTS.  451 

the  plaintiff  or  his  attorney  thirty  days  before  the  trial.^  Any  spe- 
cial matter  is  admissible,  "  tending,"  as  the  statute  expresses  it, 
"  to  prove,  (1.)  that  the  description  and  specification  filed  by  plain- 
tiff does  not  contain  the  whole  truth  relative  to  his  invention  or 
discovery ;  or  (2.)  that  it  contains  more  than  is  necessary  to  pro- 
duce the  described  effect ;  which  concealment  or  addition  shall  ful 
ly  appear  to  have  been  made  for  the  purpose  of  deceiving  the  pub- 
lic ;  or  (3.)  that  the  patentee  was  not  the  original  and  first  in- 
ventor or  discoverer  of  the  thing  patented,  or  of  a  substantial  and 
material  part  thereof  claimed  as  new  ;  or  (4.)  that  it  had  been  de- 
scribed in  some  public  work  anterior  to  the  supposed  discovery 
thereof  by  the  patentee  ;  or  (5.)  had  been  in  public  use  or  on  sale 
with  the  consent  and  allowance  of  the  patentee  before  his  applica- 
tion for  a  patent ;  or  (6.)  that  he  had  surreptitiously  or  unjustly  ob- 
tained the  patent  for  that  which  was  in  fact  invented  or  discovered 
by  another,  who  was  using  reasonable  diligence  in  adapting  and 
perfecting  the  same ;  or  (7.)  that  the  patentee,  if  an  alien  at  the 
time  the  patent  was  granted,  had  failed  and  neglected,  for  the  space 
of  eighteen  months  from  the  date  of  the  patent,  to  put  and  contin- 
ue on  sale  to  the  public,  on  reasonable  terms,  the  invention  or  dis- 
covery for  which  the  patent  issued  ;  ^  (8.)  and  whenever  tlie  de- 
fendant relies  in  his  defence  on  the  fact  of  a  previous  invention, 
knowledge,  or  use  of  the  thing  patented,  he  shall  state,  in  his  no- 
tice of  special  matter,  the  names  and  places  of  residence  of  those 
whom  he  intends  to  prove  to  have  possessed  a  prior  knowledge  of 
the  tiling,  and  where  the  same  had  been  used  ;  in  either  of  which 
cases,  judgment  shall  be  rendered  for  the  defendant,  with  costs ;  ^ 
(9.)  Provided,  hotvever,  That  whenever  it  shall  satisfactorily  appear, 
that  the  patentee,  at  the  time  of  making  his  application  for  the  pat- 
ent, believed  himself  to  be  the  first  inventor  or  discoverer  of  the 
thing  patented,  the  same  shall  not  be  held  to  be  void  on  account 
of  the  invention  or  discovery,  or  any  part  thereof,  having  been  be- 

cation  before  the  date  of  the  letters-patent ;  Teese  v.  Hnntingdon,  23  How.  U.  S.  K. 

and  that  the  third  plea  only  raised  a  ques-  10.]                                         ,      v     ,         e 

tion  of  user  before  the  grant  of  the  letters-  ^  [*  And   in   this   case  the   burden   ot 

patent.     Stead  v.  Anderson,  4  M.  G.  &  S.  proof  rests  on  the  defendant.     Tatham  v. 

806  Lowber,  2  Blatchf  49.] 

1 '  [*  If  the  first  notice  served  is  defective,  ^  p  "  Notice  of  the  time  when  the  per- 

or  not  sufficiently  comprehensive  to  admit  son  possessed  the  knowledge  or  use  ot  the 

his  defence,  the  defendant   may  give  an-  invention  is  not  required  by  the  act;  the 

other  to  remedy  the  defect  or  supply  the  name  of  the  person,  and  ot  his  place  ot 

deficiency,  subject  to  the   same  condition  residence,  and  the  place  where  it  has  been 

that  it  must  be  in  writing,  and  be  served  used,  are  sufiicient.       Phillips  v.  i  age,  24 

more  than   thirty  days  before  the  trial.  Howard,  U.  S.  R.  168. J 


452  LAW   OF  EVIDENCE.  [PART  IV. 

fore  known  or  used  in  any  foreign  country ;  it  not  appearing  that 
the  same,  or  any  substantial  part  thereof,  had  before  been  patented 
or  described  in  any  printed  publication."  ^ 

§  501.  As  the  proof  of  novelty  of  invention,  on  the  side  of  the 
plaintiff,  must  of  necessity  be  negative  in  its  character,  it  may  be 
sucessfully  opposed,  on  the  part  of  the  defendant,  by  a  single  wit- 
ness, testifying  that  he  had  seen  the  invention  in  actual  use,  at  a 
time  anterior  to  the  plaintiff's  invention.  The  facility  with  which 
this  defence  may  be  made  affords  a  strong  temptation  to  the  crime 
of  subornation  of  perjury  ;  to  prevent  which  the  .defendant  is  re- 
quired to  state,  in  his  notice,  the  names  and  residence  of  the  wit- 
nesses by  whom  the  alleged  previous  invention  is  to  be  proved. 
But  notwithstanding  its  liability  to  abuse,  the  evidence  is  admissi 
ble,  to  be  weighed  by  the  jury,  who  are  to  consider,  whether,  upon 
the  whole  evidence,  they  are  satisfied  of  the  want  of  novelty .^  If 
the  action  is  brought  by  an  assignee  against  the  patentee  himself, 
he  is  estopped  by  his  own  deed  of  assignment  from  showing  that  i' 
was  not  a  new  invention .^ 

§  501  a.  The  question  whether  the  plaintiff  is  the  true  and  origi- 
nal inventor  or  not  depends  on  the  question  whether  he  borrowed 
the  invention  from  a  source  open  to  the  public,  or  not.*  It  seems 
that  his  title  is  not  destroyed  by  the  fact  that  the  same  invention 
has  been  previously  made,  if  it  had  altogether  been  lost  sight  of.® 
If  the  invention  has  been  distinctly  described,  not  by  way  of  mere 
speculation  or  suggestion,  but  as  a  complete,  successful,  and  per- 
fect invention,  in  a  book,  whether  written  or  printed,  which  has 
been  publicly  circulated,  whether  at  home  or  abroad,  this  is  a  suf- 
ficient answer  to  the  plaintiff's  claim  as  the  first  inventor,  whether 
he  knew  of  the  publication  or  not.^ 

§  502.  The  public  use  and  exercise  of  an  invention,  which  pre- 
vents it  from  being  considered  as  new,  is  a  use  in  public,  so  as  to 
come  to  the  knowledge  of  others  than  the  inventor,  as  contradis- 
tinguished from  the  use  of  it  by  himself  in  private,  or  by  another 

1  Stat.  U.  S.  1836,  ch.  357,  sec.  15.  *  Walton  v.  Potter,  Webst.  Pat.  Cas.  592. 

*  Man  ton  v.   Man  ton,   Dav.   Pat.  Cas.  ^  Househill  Co.  v.  Neilson,  Webst.  Pat. 

250;    Pliillips  on  Patents,  pp.  415-417;  Cas.   G90.     [*  See,  on  tbis  point,   Gayler 

Lewis  V.  Marlinp,  10  B.  &  C.  22  ;  Cornish  v.  Wilder,  10    How.  U.  S.  R.  477,   where 

V.  Kccnc,  3  Binp.  N.  C.  570.     It  is  sunicient  the  matter  is  considerably  discussed  in  the 

if  the  invention  is  new  as  to  general  use  opinion  of  the  court  by  Taney,  C.  J.,  and 

and   puliiic  exercise.     Lewis   v.  Marling,  in  the  dissenting  opinions.] 

Webst.  Pat.  Cas.  492.  «  Ihid. ;  Stead  v.  Williams,  8  Jur.  930 ; 

8  Oldham  i;.  Langmead,  cited  3  T.  R.  7  M.  &  G.  818;  Brooks  v.  Jenkins,  3  Mc- 

441.  Lean,  250. 


PART  rV.]  PATENTS.  453 

by  his  license,  and  in  order  to  test  its  qualities,  and  does  not 
mean  a  use  by  the  public  generally.^  But  it  is  not  necessary  that 
the  use  should  come  down  to  the  time  when  the  patent  was 
granted  ;  proof  of  public  use,  though  it  has  been  discontinued,  is 
sufficient  to  invalidate  the  patent.^  And  the  place  of  the  use, 
whether  at  home  or  abroad,  makes  no  difference  ;^  provided,  in  the 
case  of  foreign  use,  the  invention  has  also  been  described  in  a 
printed  publication.*  It  is  sufficient  to  prove  that  it  was  not  first 
reduced  to  practice  by  the  patentee  ;  ^  but  it  is  not  sufficient  to 
prove  that  another  was  the  first  inventor,  if  he  neither  reduced 
the  invention  to  practice,  nor  used  due  diligence  in  adapting  and 
perfecting  it.^  The  proof  of  use  may  be  rebutted  by  the  plaintiff, 
by  showing  that  it  was  by  his  license.'^ 

§  503.  The  defendant  may  also  prove,  in  defence,  a  subsequent 
patent,  granted  to  the  same  patentee,  either  alone  or  jointly  with 
another  person,  and  either  for  the  whole  or  a  part  of  the  same  in 
vention.^  So,  he  may  show  that  different  and  distinct  itiventions 
are  joined  in  the  same  patent ;  or  that  the  invention  is  not  lawful^ 
or  is  pernicious.^ 

§  504.  The  defendant  may  also  show  an  abandonment  of  the  in- 
vention by  the  plaintiff,  and  a  dedication  or  surrender  of  it  to  pub- 
lic use,  prior  to  the  issuing  of  the  patent.^"  And  if  such  dedication 
was  made,  or  the  public  use  of  the  invention  was  acquiesced  in  for 
a  long  period  subsequent  to  the  issuing  of  the  patent,  this  is  a 
good  defence  in  equity,  if  the  fact  is  explicitly  relied  on,  and  put 
in  issue  by  the  answer.^^     But  the  public  use  or  sale  of  an  mven- 

1  Carpenter  v.  Smith,  9  M.  &  W.  300  ;        "<  Phillips  on  Patents,  p.  422. 

Webst.  Pat.  Cas.  535.     And  see  Pennoek  »  Treadwell  v.  Bladen,  4   Wash.  709  ; 

V.  Dialogue,  4  Wash.  544  ;  2  Pet.  1,  S.  C. ;  Phillips   on   Patents,   p.  420  ;  Odiorne  v. 

Bedford  v.  Hunt,  1   Mason,  302  ;  Bently  The  Amesbury  Nail  Factory,  2  Mason,  28  ; 

V.  Fleming,  1  C.  &  K.  587.  Barrett  v.  Hall,  1  Mason,  447.     [So  on  a 

2  Househill  Coal  and  Iron  Co.  y.  Neil-  bill  for  an  injunction  by  one  tenant  in  cora- 
Bon,  9  CI.  &  Finn.  788.  The  question  of  mon  of  letters-patent,  the  respondent  may 
public  use,  as,  whether  it  were  a  use  for  show  a  license  under  another  tenant  in 
manufacture,  or  only  for  experiment  which  common  of  the  same  patent ;  such  tenant 
had  been  abandoned,  is  a  question  for  the  in  common  having  an  equal  right  to  make, 
jury.  Elliott  v.  Aston,  Webst.  Pat.  Cas.  use,  and  sell  the  thing  patented.  Clum  v. 
224;  Cornish  v.  Keene,3  Bins;.  N.  C.  570.  Brewer,  2  Curtis,  C.  C.  506.] 

8  Brown    v.   Annandale,    Webst.    Pat.  »  Phillips  on  Patents,  pp.  128,  421. 

Cas.  433  ;  Phillips  on  Patents,  eh.  7,  §  16  ;  '^^  Phillips  on  Patents,  ch.  7,  §  19,  pp. 

Anon.  1  Chitty,  24,  n.  181-205,   422;  Pennoek  v.   Dialogue,   4 

*  Stat.    U.    S.    1836,    ch.    357,   §15;  Wash.  538 ;  2  Pet.  1,  S.  C. ;  Treadwell  y. 

[O'Reilly  V.  Morse,  15  How.  (U.  S.)  62.]  Bladen,  4  Wash.  709 ;  Whittemore  v.  Cut- 

6  Woodcock  V.   Parker,    1    Gall.    436;  ter,  1  Gall.  478.     A  disuse  of  the  invention 

Tennant's  Case,  Webst.  Pat.  Cas.  125,  n. ;  after  the  grant  of  letters-patent  is  no  de- 

Dav.  Pat.  Cas.  429,  S.  C.  fence  at  law.     Gray  v.  James,  1  Pet.  C.  C. 

6  Pennoek  v.  Dialogue,  4   Wash.  538 ;  R.  394. 

Stat.  U.  S.  1836,  ch.  357,  §  15.  "  Wyeth  v.  Stone,  1  Story,  E.  273, 282. 


45-1  LAW   OF   EVIDENCE.  [PART  IV 

tion,  in  order  to  deprive  the  inventor  of  his  right  to  a  patent,  must 
be  a  puhlic  use  or  sale  by  others,  with  his  knowledge  and  consent, 
and  before  his  application  for  the  patent.  A  sale  or  use  of  it  with 
such  knowledge  or  consent,  in  the  interval  of  time  between  the 
application  for  a  patent  and  the  grant  thereof,  has  no  such  effect.^ 
Nor  is  it  material  whether  the  public  use  was  originally  by  express 
permission  of  the  inventor  or  by  piracy  ;  for  in  either  case  it  is  his 
acquiescence  in  the  public  use  that  renders  the  subsequent  patent 
void.  And  he  is  presumed  to  acquiesce,  when  he  knows,  or  might 
know,  of  the  public  use.^ 

§  505.  A  material  defect  in  the  specification,  whether  accidental 
or  designed  and  fraudulent,  may  also  be  shown  in  defence  of  this 
action,  both  by  common  law  and  by  statute.^  So,  if  the  specifica- 
tion is  designedly  ambiguous  and  obscure  ;  or,  if  it  seeks  to  cover 
more  than  is  actually  new  and  useful,  this  also  is  good  defence.* 
"Whether  the  want  of  utility  can  be  given  in  evidence  under  the 
general  issue  has  been  questioned  ;  but  the  better  opinion  is  that 
it  may,  as  it  cannot  justly  be  said  to  be  a  surprise  on  the  plaintiff.^ 

§  506.  In  regard  to  the  fact  of  infringement,  the  general  doc- 
trine is,  that  the  use  of  any  substantial  part  of  the  invention, 
though  with  some  modifications  of  form  or  apparatus,  is  a  viola- 
tion of  the  patent  right.  It  is  the  substance  and  the  principle  of 
the  machine,  and  not  the  mere  form,  the  identity  of  purpose,  and 
not  of  name,  which  are  to  be  regarded.  A  specious  variation  in 
form,  or  an  alteration  in  the  mode  of  adaptation,  however  ingenious, 
does  not  render  it  any  the  less  an  infringement.^  So  the  use  of 
a  chemical  equivalent  for  a  substance  described  in  the  patent,  if 
known  to  be  so  at  the  time,  and  it  be  used  for  the  purpose  of  tak- 
ing the  benefit  of  the  patent  by  making  a  colorable  variation  there- 

But  it  is  no  defence  at  law.     Shaw  v.  Lowell  v.  Lewis,  1  Mason,  182;  Evans  ». 

Cooper,  7  Tet.  292.  Eaton,  1  Pet.  C.  C.  R.  322.     Unless  tho 

1  Ryan  v.  Goodwin,  3  Sumn.  514.  excess   is  disclaimed.     Stat.   U.  S.  1837 

2  Shaw  V.  Cooper,  7  Pot.  292  ;  Whitte-  oh.  45,  §§  7,  9. 

more  v.   Cutter,  1    Gall.  482  ;  Stat.  U.  S.  '^  Phillips  on  Patents,  p.  426  ;  Langdon 

1836,  ch.  357,  §§  6,  15.     See  also  Melius  v.   De  Groot,  1    Paine,   203;  Haworlh  v 

V.  Silsbee,  4  Mason,  108.  Hardcastlc,  I  Bing.  N.  C.  182. 

8  Rex  V.  Cutler,  1   Stark.  354 ;  Phillips  «  Wyuth   v.    Stone,    1    Story,  R.   273  ; 

on  Patents,  p.  424;  Stat.  U.  S.  1836,  ch.  Hill  ^.'Thompson,  8  Taunt.  375;  Walton 

357,  §  15.      [if  the   specifications  do  not  v.  Potter,  3  M.  &  G.  411  ;  4  Scott,  N.  R. 

describe  tho  invention  witli  reasonable  cer-  91  ;    Webst.   Pat.    Cas.    585  ;  Mory^an   v. 

tainty    and    precision,   the    patentee    can  Seward,  Webst.  Pat.  Cas.  171;    Cutler's 

claim   notliing  under  his  patent.     Parker  patent,   Id.   427  ;   [Sargent  v.    Earned,   2 

V.  Stiles,  5  McLean,  44.]  Curtis,  C.  C.  340  ;  O'Reilly  v.  Morse,  15 

*  Gallow.ay  v.  Bleaden,  Webst.  Pat.  Cas.  Howard,  U.  S.  62.] 
624;    Hill  v.  Thompson,   8   Taunt.  375; 


PART  IV.] 


PATENTS 


455 


from,  is  an  infringement.^  It  is  a  question  peculiarly  for  the 
jury ;  who  must  say  whether  the  defendant  has  availed'  himself 
of  the  invention  of  the  plaintiff,  without  having  so  far  departed 
therefrom  as  to  give  to  his  act  the  denomination  of  a  new  discov- 
ery .^  If  the  patent  is  for  several  distinct  improvements,  or  for 
several  machines,  the  use  of  one  only  is  a  violation  of  the  right ;  ^ 
but  where  the  patent  is  for  the  entire  combination  of  three  things, 
and  not  of  any  two  of  them,  it  is  no  infringement  to  construct  a 
machine  containing  only  two  of  the  combinations.'^  Evidence  that 
the  invention  of  the  defendant  is  better  than  that  of  the  plaintiff  is 
improper,  except  to  show  a  substantial  difference  between  the  two 
inventions.^ 

§  507.  Where  the  patent  was  originally  too  broad  in  its  specifi- 
cation, including  more  than  the  patentee  is  entitled  to  hold,  the 
error  may  now  be  cured  by  a  disclaimer,  filed  pursuant  to  the 
statute.^     But  the  disclaimer,  to  be  effectual,  must  be  filed  in  the 


1  Heath  v.  Unwin,  14  Eng.  Law  & 
Eq.  R.  202,  per  Erie,  J.,  16  Jur.  996. 
[See  also  Unwin  v.  Heath,  32  Enp.  Law 
&  Eq.  R.  45  ;  Newton  v.  Grand  Railway 
Co.,  6  lb.  557.] 

^  Walton  V.  Potter,  Webst.  Pat.  Cas. 
586,  587 ;  [Battin  v.  Taggart,  17  How.  U. 
S.  74.] 

3  Moody  V.  Fisk,  2  Mason,  112  ;  Wvetli 
V.  Stone,  1  Story,  R.  273;  Gilletti-.Wilby, 
9  C.  &  P.  334 ;  Cornish  v.  Keene,  3  Bing. 
N.  C.  570. 

*  Prouty  V.  Draper,  1  Story,  R.  568. 
[A  patent  claiming  parts  in  combination 
is  not  infrinued  by  using  part  of  the  com- 
bination. McCormick  v.  Manny,  6  Mc- 
Lean, 539  ;  Brooks  v.  Bicknell,  4  lb.  70  ; 
Stimpson  v.  Bait.  &c.  Railroad,  10  How. 
U.  S.  329.] 

6  Alden  v.  Dewey,  1  Story,  R.  336. 

6  Stat.  U.  S.  1837,  eh.  45,  §§7,  9 ;  the 
provisions  of  which  are  the.se :  "  Sec.  7. 
And  be  it  further  enacted,  That  whenever 
any  patentee  shall  have,  through  inadver- 
tence, accident,  or  mistake,  made  his 
specification  of  claim  too  broad,  claiming 
more  than  that  of  which  he  was  the  origi- 
nal or  first  inventor,  Rome  material  and 
substantial  part  of  the  thing  patented  being 
truly  and  justly  his  own,  any  such  paten- 
tee, his  administrators,  executors,  and 
assiKTS,  whether  of  the  whole  or  of  a  sec- 
tional interest  therein,  may  make  disclaim- 
er of  such  parts  of  the  thing  patented  as 
the  disclaimant  shall  not  claim  to  hold  by 
virtue  of  the  patent  or  assignment,  stating 
therein  the  extent  of  his  interest  in  such 
patent ;  whicli  disclaimer  shall  be  in  writ- 


ing, attested  by  one  or  more  witnesses,  and 
recorded  in  the  Patent-Office,  on  payment 
by  the  person  disclaiming,  in  manner  as 
other  patent  duties  are  required  by  law 
to  be  paid,  of  the  sum  of  ten  dollars. 
And  such  disclaimer  shall  thei-eafter  be 
taken  and  considered  as  part  of  the  origi- 
nal specification,  to  the  extent  of  the  inter- 
est which  shall  be  possessed  in  the  patent 
or  right  secured  thereby  by  the  disclaim- 
ant, and  by  those  claiming  by  or  under 
him  subsequent  to  the  record  thereof.  But 
no  such  disclaimer  shall  affect  any  action 
pending  at  the  time  of  its  being  tiled,  ex 
cept  so  far  as  may  relate  to  the  question 
of  unreasonable  neglect  or  delay  in  filing 
the  samfc. 

"  Sec.  9.  And  be  it  further  enacted  (any- 
thing in  the  fifteenth  section  of  the  act  to 
which  this  is  additional  to  the  contrary 
notwithstanding).  That  whenever,  by  mis- 
take, accident,  or  inadvertence,  and  with- 
out any  wilful  default  or  intent  to  defraud 
or  mislead  the  public,  any  patentee  shall 
have  in  his  specification  claimed  to  be  the 
original  and  first  inventor  or  discoverer  of 
any  material  or  substantial  part  of  the 
thing  patented,  of  which  he  was  not  the 
first  and  original  inventor,  and  shall  have 
no  legal  or  just  right  to  claim  the  same,  in 
every  such  case,  the  patent  shall  be  deemed 
good  and  valid  for  so  much  of  the  inven- 
tion or  discovery  as  shall  be  truly  and 
bona  fide  his  own  :  Provided,  It  shall  be  a 
material  and  substantial  part  of  the  thing 
patented,  and  be  definitely  distinguishable 
from  the  other  parts  so  claimed  without 
right  as  aforesaid.     And  every  such  pat- 


456  LAW   OF  EVIDENCE.  [PART  IV. 

Patent-Office  before  the  suit  is  brought ;  otherwise,  the  plaintiff  will 
not  recover  the  costs  of  suit,  even  though  he  should  prove  that  the 
infringement  was  in  a  part  of  the  invention  not  disclaimed.  And 
where  a  disclaimer  has  been  filed,  whether  before  or  after  the  suit 
is  commenced,  yet  if  the  filing  of  it  has  been  unreasonably  neg- 
lected or  delayed,  this  will  constitute  a  good  defence  to  the  action.* 
If  tlie  patentee  has  assigned  his  patent  in  part,  and  a  joint  suit  in 
equity  is  brought  by  him  and  the  assignee  for  a  perpetual  injunc- 
tion, a  disclaimer  by  the  patentee  alone,  without  the  assignee's 
uniting  in  it,  will  not  entitle  them  to  the  benefit  of  the  statute.^ 

§  508.  In  regard  to  the  competency  of  witnesses,  it  has  been  held, 
that  persons  who  have  used  the  machine  in  question,  as  the  de- 
fendant has  done,  are  not  thereby  rendered  incompetent  witnesses 
for  him,  notwithstanding  the  object  of  the  defence  is  to  invalidate 
the  patent,  as  well  as  to  defeat  the  claim  of  damages  ;  for  in  such 
a  case  the  witness  stands  in  the  same  predicament  as  the  rest  of 
the  community  ;  and  the  objection  to  his  competency  would  equal- 
ly apply  to  every  witness,  since,  if  the  patent  were  void  in  law, 
every  person  might  use  it,  and  therefore  every  person  might  be 
said  to  have  an  interest  in  making  it  public  property.^  Another 
patentee  claiming  adversely  to  the  plaintiff,  and  under  whose  li- 
cense the  defendant  has  acted,  is  also  a  competent  witness  for  the 
defendant.* 

§  509.  The  subject  of  Copyright,  which  is  usually  treated  in 
connection  with  that  of  Patents,  may  properly  be  considered  in  this 
place. 

§  510.  The  remedy  for  an  infringement  of  copyright  is  either 
at  law,  by  an  action  for  the  statute  penalties,  or  by  an  action  on 
the  case  for  damages,  or  in  equity,  by  a  bill  for  an  injunction  ;  * 

entee,   his  executors,   administrators,  and  right :  Provided,  however.  That  no  person 
assigns,  whether  of  a  whole  or  of  a  section-  bringing  any  such  suit  shall  be  entitled  to 
al   interest   therein,   shall    be  entitled    to  the  benefits  of  the  provisions  contained  in 
maintain  a  suit  at  law  or  in  equity  on  such  this  section,  who  shall  have  unreasonably 
patent  for  any  infringement  of  such  part  neglected  or  delayed  to  enter  at  the  Pat- 
of  the  invention  or  discovery  as  shall  be  ent-Office  a  disclaimer  as  aforesaid." 
bona  fide  his  own  as  aforesaid,  notwith-  ^  Reed    v.    Cutter,    1    Story,    R.    590 ; 
standing  the   specification   may  embrace  [Guyon  v.  Serrell,  1  Blatch.  C.  C.  244 ; 
more  than  he  shall  have  any  legal  right  to  Foote  v.  Silsby,  lb.  445  ;  Silsby  v.  Foote, 
claim.     But,  in  every  such  case  in  which  a  14  How.  U.  S.  218.]     [*  Seymour  v.  Mc- 
iudgment  or  verdict  shall  be  rendered  for  Cormick,  19  How.  tJ.  S.  R.  96.] 
the   plaintiff,    he  shall  not  be  entitled  to  ^  Wycth  v.  Stone,  1  Story,  R.  273. 
recover  costs  against  the  defendant,  unless  ^  Evans  v.  Eaton,  7  Wheat.  356  ;  Evans 
he  shall  liave  entered  at  the  Patent-Office,  v.  Hettich,  Id.  453. 
prior  to   the   coinnienccment  of  the   suit,  *  Treadwell  v.  Bladen,  4  Wa-sh.  704. 
a  di-;claimer  of  all  that  part  of  the  thing  ^  Stat.  U.  S.  1831,  ch.   16.     The  sub- 
patented  which   was   so   claimed   without  ject  of  literary  projK'rty,  both  bv  comnioD 


PART  IV.] 


PATENTS. 


457 


but  in  either  case  the  evidence  necessary  on  both  sides  is  sub- 
stantially the  same,  the  plaintiff  being  obliged  to  prove  his  title  to 
the  exclusive  privilege  claimed,  and  the  fact  of  its  violation,  or,  in 
equity,  at  least  an  intended  violation,  by  the  defendant. 

§  511.  The  plaintiff,  to  make  out  his  title^  must  prove  that,  prior 
to  the  publication  of  his  work,  he  deposited  a  printed  copy  of  its 
title  in  the  clerk's  office  of  the  District  Court  of  the  United  States 
for  .the  district  where  he  resided  at  the  time,  and  that  notice  of  the 
copyright  was  given  on  the  title-page,  or  the  page  next  following, 
or,  if  it  be  a  map,  or  print,  or  musical  composition,  then  on  its 
face,  in  the  form  prescribed  by  the  statute.  He  is  also  required 
to  deliver  to  the  district  clerk  a  copy  of  the  work,  within  three 
months  after  its  publication ;  ^  and  it  seems  that  a  compliance 
with  this  requirement  also  must  be  strictly  shown.'"^  Of  these  facts, 
the  certificate  of  the  district  clerk,  and  the  production  of  a  copy 
of  the  work,  will  be  sufficient  pnTwa/aae  evidence. 


law  and  by  statute,  received  a  very  full  and 
elaborate  discussion  in  the  leading  case  of 
Wheaton  i-.  Peters,  8  Peters,  591. 

1  Stat.  U.  S.  1831,  eh.  16,  §§  4,  5. 
These  sections  are  as  follows  :  "  Sect.  4. 
And  be  it  further  enacted,  that  no  person 
shall  be  entitled  to  the  benefit  of  this  act, 
unless  he  shall,  before  publication,  deposit 
a  printed  copy  of  the  title  of  such  book  or 
books,  map,  chart,  musical  composition, 
print,  cut,  or  engraving,  in  the  clerk's  office 
of  the  district  court  of  the  district  wherein 
the  author  or  proprietor  shall  reside,  and 
the  clerk  of  such  court  is  hereby  directed 
and  required  to  record  the  same  {qii. 
name?)  thereof  forthwith,  in  a  book  to  be 
kept  for  that  purpose,  in  the  words  follow- 
ing (giving  a  -copy  of  the  title  under  the 
seal  of  the  court,  to  the  said  author  or  pro- 
prietor, whenever  he  shall  require  the 
same)  ;  'District  of to  wit :  Be  it  re- 
membered,  that  on   the  day  of 

Anno  Domini A.  B.,  of  the  said  dis- 
trict, hath  deposited  in  this  office  the  title 
of  a  book  (map,  chart,  or  otherwise,  as 
the  case  may  be),  the  title  of  wliich  is  in 
the  words  following,  to  wit  (here  insert 
the  title)  ;  the  right  whereof  he  claims  as 
author  (or  proprietor  as  the  case  may  be), 
in  conformity  with  an  act  of  Congress, 
entitled,  "  An  act  to  amend  the  several 
acts  respecting  copyrights."  C.  D.,  clerk 
of  the  district.'  For  which  record  the 
clerk  shall  be  entitled  to  receive,  from  the 
person  claiming  such  right  as  aforesaid, 
fifty  cents ;  and  the  like  sum  for  every 
copy  under  seal  actually  given  to  such 
person  or  his  assigns.    And  the  author  or 


proprietor  of  any  such  book,  map,  chart, 

musical  composition,  print,  cut,  or  engrav- 
ing, shall,  within  three  months  from  the 
pulilication  of  said  book,  map,  chart,  mu- 
sical composition,  print,  cut,  or  engraving, 
deliver,  or  caused  to  be  delivered,  a  copy 
of  the  same  to  the  clerk  of  said  district. 
And  it  shall  be  the  duty  of  tlie  clerk  of 
each  district  court,  at  least  once  in  every 
year,  to  transmit  a  certified  list  of  all  such 
records  of  copyright,  including  the  titles 
so  recorded,  and  the  date  of  record,  and 
also  all  the  several  copies  of  books  or  other 
works  deposited  in  his  office  according  to 
this  act,  to  the  Secretary  of  State,  to  be 
preserved  in  his  office. 

"  Sect.  5.  And  be  it  further  enacted,  That 
no  person  shall  be  entitled  to  the  benefit 
of  this  act,  unless  he  shall  give  information 
of  copyright  being  secured,  by  causing  to 
be  inserted,  in  the  several  copies  of  each 
and  every  edition  published  during  the 
term  secured,  on  the  title-page,  or  the 
page  immediately  following,  if  it  be  a 
book,  or  if  a  map,  chart,  musical  composi- 
tion, print,  cut,  or  engraving,  by  causing 
to  be  impressed  on  the  face  thereof,  or  if  a 
volume  of  maps,  charts,  music,  or  engrav- 
ings, upon  the  title  or  frontispiece  thereof, 
the  following  words,  viz.  '  Entered  ac- 
cording to  act  of  Congress,  in   the  year 

,  by  A.  B.,  in  the  clerk's  office  of  the 

district  court  of '(as  the  case  may 

be)." 

'■^  Such  was  the  construction  of  a  similar 
provision  in  the  act  of  1790,  ch.  42,  sec 
4.  Ewer  V.  Coxe,  4  Wash.  487  ;  Whea 
ton  V.  Peters,  8  Peters,  591. 


458  LAW   OF   EVIDENCE.  [PART  IV. 

§  511  a.  The  author  of  any  book  or  other  composition  enumer- 
ated in  the  statutes  respecting  the  law  of  copyright  is  also  required 
to  deliver  a  copy  thereof  to  the  librarian  of  the  Smithsonian  Insti- 
tution, and  another  copy  to  the  librarian  of  the  Congress  Library, 
for  the  use  of  those  libraries,  within  three  months  after  the  publi- 
cation of  the  book,  map,  &c.^  But  this  provision  is  understood  as 
merely  directory,  and  not  as  another  condition  added  to  those 
already  made  precedent  to  the  exclusive  right  of  the  author .^ 

§  512.  It  is  frequently  necessary  for  the  plaintiff  to  go  further, 
and  prove  that  he  is  the  author  of  the  work  ;  for  which  purpose 
the  original  manuscript,  which  it  is  always  expedient  to  preserve, 
is  admissible,  and  generally  is  sufficient  evidence ;  it  being  proved 
to  be  the  handwriting  of  himself  or  of  his  amanuensis.  If  it  is 
lost  or  destroyed,  it  must  be  proved  by  secondary  evidence.  If  the 
subject  was  an  engraving,  it  may  be  proved  by  producing  one  of 
the  prints  taken  from  the  original  plate  ;  the  production  of  the 
plate  itself  not  being  required.^ 

§  513.  Where  the  action  is  by  an  assignee,  he  must  deduce  his 
title  by  legal  assignment  from  the  original  author  or  proprietor,  in 
addition  to  the  proof  already  mentioned.  The  instrument  of  as- 
signment must  be  proved  or  acknowledged  in  the  same  manner  as 
deeds  of  land  are  required  to  be  proved  or  acknowledged  in  the 
State  or  district  where  the  original  copyright  is  deposited  and  re- 
corded ;  and  in  order  to  be  valid  against  a  subsequent  purchaser 
without  notice,  it  must  also  be  recorded  in  the  clerk's  office  of  the 
same  district  within  sixty  days  after  its  execution.* 

§  514.  The  plaintiff  must  prove  the  infj'ingement  of  his  right  by 
the  defendant.  And  it  is  an  mfringement,  if  the  defendant  has 
published  so  much  of  the  plaintiff's  work  as  to  serve  as  a  substitute 

1  Stat.  U.  S.  1846,  ch.  178,  §  10.   [*Re-  them  to  the  public,    and  the  publication 
pealed  by  act  of  1859,  ch.  22,  §  6.]  of  them  will  be  restrained  by  injunction. 

2  Jollie  V.  Jaques,  N.  Y.  Leo-.  Qbs.  Jan.  Bartlett  v.  Crittenden,  4  McLean,  300.] 
1851,  p.  11  ;    [1  Blatch.  C.  C.  G18.]  *  Stat.  U.  S.  1834,  ch.  157,  §  1  ;  Curtis 

8  Maugham   on   Literary   Property,   p.  on   Copyright,  ch.  8,  pp.    216-235.     [A 

165;  Thompson  v.  Symonds,  5  T.  R.  41,  seizure  and  sale  on  execution  of  the  en- 

46.     [Where  an   autlior  is  employed  by  graved   plate    of   a  map,   for  which    the 

the  proprietor  of  a  periodical  to  write  for  debtor  has  obtained  a  copyright,  docs  not 

it  articles  on  certain  terms  as  to  price,  but  transfer  the  copyright  to  the  purchaser ;  and 

without  any  mention  of  the  copyright,  it  is  the  del)tor  is  entitled,  without  reiml)ursing 

to  be  inferred   that  the  copyright  was  to  to  the  purchaser  the   money  paid  by  the 

belong  to  such  proprietor.     Sweet  v.  Ben-  latter  on   such  sale,  to  an  injunction  to 

ning,  30  Eng.  Law  &  Eq.  461 ;  Richard-  restrain    the   purchaser  from  striking  off 

son  V.  Gilbert,  3  lb.  268.     One  who  per-  and  selling  copies  of  the  map.     Stephens 

mits  pupils  to  take  copies  of  his  manu.scripts  v.  Cady,  14  How.  U.  S.  528;  Stevens  v. 

for  the  purpose  of  instructing  themselves  Gladding,  17  lb.  447. J 
and    others,  does    not    thereby  abandon 


PART  IV.]  PATENTS.  459 

for  it ;  or  has  extracted  so  much  as  to  communicate  the  same 
knowledge  ;  whether  it  be  in  the  colorable  form  of  an  abridgment, 
or  a  review,  or  by  incorporating  it  into  some  larger  work,  such  as 
an  encyclopedia,  or  in  any  other  mode.^  For  the  question  of  vio- 
lation of  copyright  may  depend  upon  the  value,  rather  than  on  the 
quantity  of  the  selected  materials.^  If  so  much  of  the  work  be 
taken,  in  form  and  substance,  that  the  value  of  the  original  work 
is  sensibly  diminished,  or  the  labors  of  the  author  are  substantially, 
to  an  injurious  extent,  appropriated  by  another,  it  constitutes,  in 
law,  pro  tanto,  a  piracy .^  But  a  fair  and  real  abridgment,  or  a  fair 
quotation,  made  in  good  faith,  is  no  violation  ;  and  of  this  intent 
the  jury  are  to  judge.*  If  the  main  design  be  not  copied,  the 
circumstance  that  part  of  the  composition  of  one  author  is  found 
in  another  is  not  of  itself  piracy  sufficient  to  support  an  action. 
Nor  will  it  suffice,  if  the  effect  of  the  new  publication  is  prejudical 
in  some  degree  to  that  of  the  plaintiff,  unless  it  is  substantially  so. 
If  it  is  substantially  a  copy,  it  is  actionable,  however  innocent  the 
intention  of  the  defendant  in  publishing  it ;  on  the  other  hand,  if 
it  is  not  substantially  a  copy,  or  a  colorable  selection,  or  an 
abridgment,  the  publication  is  lawful,  however  corrupt  the  motive. 
It  is  the  middling  class  of  cases  which  involve  the  greatest  diffi- 
culty, namely,  where  there  is  not  only  a  considerable  portion  of 
the  plaintiff's  work  taken,  but  also  much  that  is  not;  and  here 
the  question,  upon  the  whole,  is,  whether  it  is  a  legitimate  use  of 
the  plaintiff's  publication,  hi  the  fair  exercise  of  a  menial  opera- 
tion, entitling  it  to  the  character  of  an  original  work.^ 

§  615.  In  the  defence  of  this  action,  on  other  grounds  than  that 
of  defect  in  the  plaintiff's  case,  it  may  be  shown  that  the  plaintiff's 
publication  was  itself  pirated,^  or  that  it  was  obscene,  or  immoral, 

1  2  Kent,  Coram.  382,  383  ;  Godson  on  prose  translation  (having  no  qualities  of  a 
Patents,  pp.  47.5,  476,  2d  edit. ;  Maugham  paraphrase)  of  a  copyright  prose  romance, 
on  Literary  Property,  Part  3,  ch.  1,  pp.  which  the  author  had  herself  caused  to  be 
126 -136;  "Gray  v.  Russell,  1  Story,  R.  translated  in  a  way  she  liked  and  copy- 
11.  SeeCurtisonCopyright,  ch.  .5,pp.  169  righted,  an  infringement  of  the  author's 
-192,  where  the  subject  of  originality  is  copyright  of  the  original.  Stowe  y.  Thom- 
treated  with  clearness  and  just  discrimina-  as,  2  Wallace,  Jr.  547.] 

tion.     [Jollie  v.  Jaques,  1    Blatch.  C.   C.  ^  Wilkins    v.  Aikin,  17  Ves.  422,   426. 

618.]  It  is  sometimes  said,  that  in  these  cases  the 

2  Gray  v.  Russell,  1  Story,  R.  11  ;  question  is  whether  it  was  done  anitno 
[Clayton  v.  Stone,  2  Paine,  C.  C.  382.]  furandi  or  not     But  the  accuracy  of  this 

8  2  Kent,  Comm.  383,  note  (b),  4th  edit. ;  test  is  not   very   readily  perceived.     The 

Eoworth  V.  Wilkes,  1  Campb.  94.  subject  of  infringement  is  copiously  dis- 

*  Ibid. ;  Godson  on  Patents,   pp.   447,  cussed    in   Curtis    on    Copj-right,   ch.   9, 

478;    Maugham    on   Literary    Property,  pp.  236 -.305.     And  see  Webb  v.  Powers, 

pp.  93,  99,  129-132;  [Story's  Executors  2  W.  &  M.  497. 

r.  Holcombe,  4   McLean,  306.    Nor  is  a  ^  In  order  to  prove  a  prior  publication 


460  LAW  OF  EVIDENCE,  [PART  IV. 

or  libellous,  either  on  government,  or  on  individuals  ;  or  that  it 
was  in  other  respects  of  a  nature  mischievously  to  affect  the  public 
morals  or  interests.^  But  in  equity,  it  seems,  that  an  injunction 
may  be  granted,  notwithstanding  the  bad  character  of  the  subject, 
if  the  author,  repenting  of  his  work,  seeks  by  this  mode  to  suppress 
it.^  If  the  defence  is  made  under  the  plaintiff's  license  for  the 
publication,  the  defendant,  in  an  action  at  law,  must  prove  it  by  a 
writing,  signed  by  the  plaintiff,  in  the  presence  of  two  or  more 
credible  witnesses.^ 

in  a  foreign  country,  it  is  not  enough  to  which  foreign  book  appeared  to  be  copied 

prove,  by  a  witness,  that  he  has  seen  it  from  the  English  book.     Murray  v.  Bogue, 

there  in  print,  without  accounting  for  the  17  Eng.  Law  &  Eq.  165.] 
non-production  of  the  printed  copy.   Boosy        ^  Godson    on   Patents,   pp.   478,   479; 

r.  Davidson,  13  Jur.  678.     [A  charge  of  Maugham  on  Literary  Property,  pp.88 

piracy  of  an  Enghsh  book  cannot   be  re-  99. 

butted   by   showing   that   the   part    com-         ^  Southy  v,  Sherwood,  2  Meriv.  438. 
plained  of  was  copied  from  a  foreign  book,         •  Stat  U.  S.  1831,  ch  16,  §§  6,  7,  9. 


PART  IV.J  PAYMENT.  461 


PAYMENT. 


[•  $  516.  Burden  of  proof  of  payment  is  on  the  defendant.  In  assumpsit  may  be  sflown 
under  general  issue.  In  debt  on  specialty  or  record  must  be  specially 
pleaded. 

617.  'Written  receipt  not  conclusive.  Parol  evidence  of  payment  admissible,  not- 
withstanding. 

518.  Payment  good  if  made  to  plaintiff's  agent  or  attorney-at-law,  or  to  one  of  sev- 
eral partners,  trustees,  or  executors. 

619.  Intention  of  parties,  to  prevail,  unless  it  contravene  some  well-established 
principle  of  law.    Presumptions  of  intention  made  by  the  court. 

520.  Gi'S'ing  debtor's  own  negotiable  note  or  bill  for  pre-existing  debt  is  prima  facit 

evidence  of  payment 

521.  Debtor's  own  security  not  negotiable,  ordinarily  not  taken  as  payment. 

522.  Delivery  and  acceptance  of  bank-notes,  a  payment. 

523.  Voluntary  acceptance  of  bill  or  note  of  third  person  a  payment. 

524.  Foreclosure  of  mortgage  payment  pro  tanto  at  time  of  complete  foreclosure. 

Legacy  sometimes  payment. 

525.  Remittance  by  post,  with  authority  of  creditor,  a  payment 

526.  Delivery  and  acceptance  of  any  specific  article  or  collateral  thing,  as  satisfac- 

tion of  the  debt,  a  payment 
627.  Presumption  of  payment  arising  from  defendant's  possession  of  security. 

528.  Payment  inferred  from  lapse  of  twenty  years  without  explanatory  circum- 

stances ;  from  circumstances  coupled  with  the  lapse  of  a  shorter  time. 

529.  Rules  governing  appropriation  of  payments. 

530.  Appropriation  by  the  debtor  proved  by  his  declarations,  or  circumstances 

6ho^ving  his  intention.     Intention  must  be  signified  to  creditor  at  time  of 
payment  ^ 

531.  Exceptions  to  right  of  creditor  to  make  appropriation  where  debtor  makes 

none. 
631  a.  Principle  is  that  debtor,  waiving  his  right  of  making  appropriation,  could 
not  have  intended  creditor  to  make  it  to  his  injury. 

532.  Weight  of  authority  is  that  creditor  may  make  application  when  he  pleases. 
532  a.  Payment  once  appropriated  cannot  be  changed  without  consent  of  both 

parties. 

533.  "WTien  neither  party  has  appropriated  the  payment,  courts  apply  it  according 

to  the  intrinsic  justice  and  equity  of  the  case. 

534.  Debt  secured  by  surety  not  necessarily  entitled  to  a  preference  in  the  appro- 

priation of  a  general  payment. 
635.  Payment  may  be  applied  by  creditor  to  debt  barred  by  statute  of  limitations. 
536.  Court  sometimes  applies  pajmient  in  a  ratable  proportion  to  aU  the  existing 

debts.  I 


462  LAW   OF   EVIDENCE.  [PART  IV. 

§  516.  The  defence  of  payment  may  be  made  under  the  gen- 
eral issue,  in  assumpsit,  but  in  an  action  of  debt  on  a  specialty  or 
a  record,  it  must  be  specially  pleaded.  In  either  case,  the  burden 
of  proof  is  on  the  defendant,  who  must  prove  the  payment  of 
money,  or  something  accepted  in  its  stead,  made  to  the  plaintiff, 
or  to  some  person  authorized  in  his  behalf  to  receive  it.  The 
word  "  payment "  is  not  a  technical  term  ;  it  has  been  imported 
into  law  proceedings  from  the  exchange,  and  not  from  law  trea- 
tises. When  used  in  pleading,  in  respect  to  cash,  it  means  imme- 
diate satisfaction  ;  but  when  applied  to  the  delivery  of  a  bill  or 
note,  or  other  collateral  thing,  it  does  not  necessarily  mean  pay- 
ment in  immediate  satisfaction  and  discharge  of  the  debt,  but  may 
be  taken  in  its  popular  sense,  as  delivery  only,  to  be  a  discharge 
when  converted  into  money.^ 

§  517.  If  a  receipt  was  given  for  the  money,  it  is  proper  and 
expedient  to  produce  it ;  but  it  is  not  necessary  ;  parol  evidence  of 
the  payment  being  admissible,  notwithstanding  the  written  receipt, 
and  without  accounting  for  its  absence.^  And  if  produced,  it  is 
not  conclusive  against  the  plaintiff,  but  may  be  disproved  and 
contradicted  by  parol  evidence.^ 

§  518.  Respecting  the  person  to  whom  the  payment  was  made, 
if  it  was  made  to  an  agent  of  the  plaintiff,  his  authority  may  be 
shown  in  any  of  the  modes  already  stated  under  that  title.*  If 
it  was  made  to  an  attorney-atrlaw,  his  employment  by  the  creditor 
must  be  proved ;  in  which  case  the  payment  is  ordinarily  good, 
upon  the  custom  of  the  country,  until  his  authority  has  been 
revoked.^  Payment  of  a  judgment  to  the  attorney  of  record  who 
obtained  it,  though  made  more  than  a  year  after  the  judgment 
was  recovered,  has  been  held  good  ;  ^  but  if  the  payment  was  made 

1  Manning  v.  The  Duke  of  Argyle,  6  it,  and  informed  the  debtor  that  the  money 

M.  &   G.  40.     If  payment  of  the    whole  was  subject  to  his  order,  it  was  hehl  no 

sum  due  is  pleaded,  but  the  proof  is  of  the  payment.    Kingston  Bank  v.  Gay,  19  Barb, 

payment  of  part  only,  the  defendant  is  en-  459.] 

titled  to  the  benefit  of  this  evidence  by  way  ^  Southwick  v.  Hayden,  7  Cowen,  334. 

of  red  notion  of  damages.    Lord  ».  Ferrand,  ^  ^nt£,  Vol.  1,  §305;  Skaife».  Jackson, 

1  Dowl.  &  L.  G30.     And  proof  of  the  pay-  5  D.  &  R,  290  ;  3  B.  &  C.  421 ;  Nicholson 

ment  and  accejitance  of  the   wiiole   debt  v.  Frazier,  4  Harringt.  206. 

will  support  a  plea  of  payment  of  debt  *  Supra,  tit.  Agency,  per  tot. ;  [Stray- 

and  damages,  where  the  latter  are  merely  horn  v.  Webb,  2  Jones's  Law  (N.  C.)  199; 

nominal.      Beaumont    v.     Greatliead,     3  Simpson  v.  Eggington,  32   Eng.  Law   & 

DowL  &  L.  631.     [To  constitute  a  pay-  Eq.  597  ;  Underwood  v.  Nicholls,  33   lb. 

ment,  money  or  some  other  valuable  thing  321  ;  Bell  v.  Buckley,  34  lb.  92.] 

must  be   delivered  for  the  purfwsc  of  ex-  ^  Hudson  v.  Johnson,  I  Wash.  10. 

tinguishing  the  debt,  and  must  be  received  "^  Langdoii    v.    Potter,    13    Mass.    219; 

for  that  purpose.     AVhere  money  was  for-  Jackson  v.  Bartlett,  8  Jolms.  SGI  ;  Branch 

warded,  hut  the  creditor  refused  to  receive  v.  Burnley,  1  Call,  147  ;  Lewis  ».  Gama<je, 


PART  IV  .J  PAYMENT.  468 

to  an  agent  employed  by  the  attorney,  or  to  the  attorney's  clerk, 
not  authorized  to  receive  it,  it  is  otherwise.^  Even  if  land  has 
been  set  off  to  the  creditor  by  extent,  in  satisfaction  of  an  execu- 
tion pursuant  to  the  statute  in  such  cases,  payment  of  the  money 
to  the  creditor's  attorney  of  record  within  the  time  allowed  by 
law  to  redeem  the  land,  is  a  good  payment.^  But  proof  of  pay- 
ment made  to  the  attorney  after  his  authority  has  been  revoked 
will  not  discharge  the  liability  of  the  party  paying.^  It  is  also  a 
good  payment,  if  made  to  a  person  sitting  in  the  counting-room  of 
the  creditor,  with  account-books  near  him,  and  apparently  in- 
trusted with  the  conduct  of  the  business  ;  ^  but  not  if  made  to  an 
apprentice,  not  in  the  usual  course  of  business,  but  on  a  collateral 
tranmction.^  Payment  is  also  good,  if  made  to  one  of  several 
partners,  trustees,  or  executors.^  And  if  the  plaintiff  has  drawn 
an  order  on  the  defendant,  payable  to  a  third  person,  upon  which 
the  defendant  has  made  himself  absolutely  liable  to  the  holder, 
this,  as  against  the  plaintiff,  is  a  good  payment  of  his  claim  to  that 
amount,  even  though  the  plaintiff  has  subsequently  counter- 
manded it.'^  The  possession  of  the  order,  by  the  debtor  on  whom 
it  was  drawn,  is  prima  facie  evidence  that  he  has  paid  it.^ 

1  Pick.  347  ;  Kellogg  v.  Gilbert,  10  Johns.         "^  Hodgson  v.  Anderson,  3  B.  &  C.  842 ; 

220  ;  ^Powell  v.  Little,  1  W.  Bl.  8.  Tatlock  v.  Harris,  3  T.  R.  180.     [But  a 

^  Yates   r.   Fi'cckleton,   2    Doug.   623 ;  conditional  acceptance  of  sucli   an  order 

Perry  v.  Turner,  2  Tyrw.  128  ;  1  Dowl.  P.  does  not  operate  as  a  payment,  especially 

C.  300  ;  2  C.  &  J.  89,  S.  C.  if  it  be  afterwards  given  up  to  the  debtor 

2  Gray  v.  Wass,  1  Greenl.  257.  by  such  third  party  unpaid.     Bassett  v. 

3  Parker  v.  Downing,  13  Mass.  465;  Sanborn,  9  Cusli.  58.  If  a  debtor,  on  the 
Wurt  V.  Lee,  3  Yeates,  7.  [The  death  of  application  of  the  creditor,  by  an  order, 
thepriufipiilis  a  revocation  of  the  authority  verbal  or  written,  requests  a  third  person 
of  the  agent;  yetthepayineutofmoney  toan  to  pay  the  debt,  whether  such  third  person 
agent  after  the  death  of  the  principal,  the  is  bound  to  do  so  or  not,  and  lie  does  pay  it, 
death  being  unknown  to  both  parties,  is  a  it  is  a  payment  of  the  debt,  and  a  discharge 
good  payment,  and  binds  the  estate  of  the  of  the  claim  of  the  creditor.  Tuckermau 
principal.     Cassiday  p.  McKenzie,  4  Watts  v.  Sleeper,  9  Gush.  180.] 

&  Serg.  382.]  8  [See  post,  §§  527,  528.     So  when   a 

*  Barrett  v.  Deere,  1  M.  &  Malk.  200.  promissory  note  or  bill  of  exchange   has 

^  Saiinderson  v.  Bell,  2  C.  &  Mees.  304  ;  been  negotiated,  and  afterwards  comes  in- 

4  Tyrw.  224,  S.  C.  to  the  possession  of  one  of  the  parties  lia- 

^  Porter   v.   Taylor,   6    M.    &    S.  156;  ble  to  pay  it,  such  possession  is /^nma/acf'e 

Stone  V.  Marsh,  Ry.  &  M.  364.     Can  v.  evidence  of  payment  by  him.     Baring  v. 

Reed,  3  Atk.  695;   [Bryant  v.  Smith,   10  Clark,  19  Pick.  220;  McGec  v.  Prouty,  9 

Gush.  169.     Payment  of  an  execution  by  Met.  547.     But  this  rule  of  law  does  not 

one  of  several   defendants    so   far  extin-  apply  to  a  possessioti  by  one  of  two  jcint 

guishes  it,  that  it  cannot  be  subsequently  promisors  in  an  action  by  him  to  recover 

assigned  to  the  debtor  paying  it,  and  be  of  the  other  one  half  the  amount  thereof, 

levied  by  him  on  the  land  of  the   other  Pleald  v.  Davis,  11   Gush.  319.]     [*  Two 

debtors.     Adams  v.  Drake,  11  Gush.  505.  bills  of  sale  shown  to  have  been  intended. 

And  a  payment  of  a  promissory  note  by  the   one  as   a  mortgage,  the  other  as   a 

one  promisor  extinguishes  the  note.     Pray  release  of  the  mortgagor's  interest  to  the 

V.  Maine,  7  Gush.  253.      See  also  Burr  v.  mortgagee,  were  held  to  show  payment  of 

Smith,  21  Barb.  262  ;  Thorne  v.  Smith,  2  the  debt  secured  bv  the  mortgage.     Seigh- 

Eng.  Law  &  Eq.  303.]  man  v.  Marshall,  17  Md.  550.J 


464  LAW   OF  EVIDENCE.  [PART  IV. 

§  519.  As  to  the  mode  of  payment,  it  may  be  by  any  lawful 
method  agreed  upon  between  the  parties,  and  fully  executed. 
The  meaning  and  intention  of  the  parties,  where  it  can  be  distinctly 
known,  is  to  have  effect,  unless  that  intention  contravene  some 
well-established  principle  of  law.  This  intention  is  to  be  ascer- 
tained, in  ordinary  cases,  by  the  jury  ;  but  it  is  sometimes  legally 
presumed  by  the  court.^  Thus,  the  giving  of  a  higher  security 
is  conclusively  taken  as  payment  of  a  simple  contract  debt. 
Where  the  payment  is  made  by  giving  the  party's  own  security,  it 
is  either  negotiable  or  not.  Ordinarily,  the  giving  of  a  new 
security  of  the  same  kind  with  the  former,  and  for  the  amount 
due  thereon,  as  a  new  note  for  an  old  one,  familiarly  known 
in  the  Roman  and  modern  continental  law  as  a  Novation,  is  equiv- 
alent to  payment  of  the  latter ;  ^  but  if  it  is  for  a  less  amount, 
it  is  not.^  If  a  promissory  note  is  taken  as  a  satisfaction,  by 
express  agreement,  it  will  be  so  held,  even  though  the  debt  was 
due  of  record.* 

§  520.  Where  the  debtor's  own  negotiable  note  or  hill  is  given 
for  a  pre-existing  debt,  it  is  prima  facie  evidence  of  payment,  but 
is  still  open  to  inquiry  by  the  jury.  The  reason  is  that,  other- 
wise, the  debtor  might  be  obliged  to  pay  the  debt  twice.^     If  such 

1  Millikin  v.  Brown,  1  Rawle,  397,  398  ;  of  fact  only,  and  may  be  rebutted  and  con- 
Watkins  v.  Hill,  8  Pick.  522,  523  ;  Thatch-  trolled  by  evidence  that  such  was  not  the 
er  V.  Dinsmore,  5  Mass.  299  ;  Johnson  v.  intention  of  the  parties.  Mclledjie  v.  Bos- 
Veed,  9  Johns.  310.  ton  Iron  Co.,  5  Cush.  170;  I'arkhurst  ». 

2  Story  on  Bills,  §  441  ;  Poth.  Obi.  by  Jackson,  36  Maine,  404  ;  Sweet  v.  James, 
Evans,  n.  546  -  564  ;  Cornwall  v.  Gould,  4  2  11.  1.  270.]  By  the  En«-lish  decisions,  it 
Pick.  444;  Huse  v.  Alexander,  2  Met.  seems  that  the  receipt  of  bills  is  not  deemed 
157.  payment,  unless  expressly  so   agreed,  or 

*  Canfield  D.  Ives,  18  Pick.  253;  Heath-  the  bills  have  been  negotiated,  and  are 
cote  V.  Crookshanks,  2  T.  R.  24  ;  Fitch  v.  outstanding  against  the  defendant.  Bur- 
Sutton,  5  East,  230 ;  Smith  v.  Bartholo-  den  v.  Halton,  4  Bing.  4.'J4  ;  Bolt  v.  Wat- 
mew,  1  Met.  276.  son.  Id.  273.     And  see  Raymond  v.  Mer- 

*  Tlic  New  York  State  Bank  y.  Fletcher,  chant,  3  Cowen,  147;  [Belshaw  p.  Bush, 

5  Wend.  85;  Clark  v.  Pinney,  6  Cowen,  14  Eng.  Law  &  Eq.  269  ;  Coburn  v.  Odell, 
297.  10  Foster    (N.  H.)  540;  Noel  w.  Murray, 

6  Johnson  v.   Johnson,    11    Mass.  361  ;  3  Kernan  (N.  Y.)  167  ;    Vansteenburg  v. 

Hebden  v.  Hartsink,  4  Esp.  46  ;  Thatcher  Hoffman,  15  Barb.  28  ;  Mooring  v.  Mobile, 

V.   Dinsmore,    5    Mass.    299;    Holmes   v.  &c.  Ins.  Co.,  27  Ala.  2.i4  ;  Allen  ».  King, 

D'Camp,  1  Johns.  34  ;  Pintard  v.  Tack-  4  McLean,  128  ;  Lvman  v.  United  States 

ington,  10  Johns.  104;  Maneely  y.  McGee,  Bank,  12  How.  (U!  S.)  225.]     [*  See  The 

6  Mass.  143;  Butts  v.  Dean,  2  Met.  76;  Kimball,  3  Wallace,  U.  S.  R.  37,  where  it 
Reed  v.  Upton,  10  Pick.  522  ;  Jones  v.  is  held  that  a  note  does  not  extinguish  the 
Kennedy,  11  Pick.  125;  Watkins  v.  Hill,  debt  for  which  it  was  given,  unless  such  be 
8  Pick.  522,  523  ;  Gumming  v.  Hackley,  8  the  express  agreement  of  the  parties.  See 
Johns.  202  ;  Comstock  v.  Smith,  10  SiiVpl.  also  Page  v.  Hui)bard,  Sprague's  Dec. 
202 ;  Dogan  v.  Ashbey,  1  Rich.  36.  338.  In  Spooner  v.  Rowland,  4  Allen, 
[*  Dickinson  v.  King,  28  Vt.  380.]  [Tlie  485,  it  is  held  that  an  order  upon  the  .sec- 
presumption  that  a  negotiable  note  is  taken  rctary  of  an  insurance  company,  payable 
in  satisfaction  of  a  pre-existing  dei)t,  and  at  sight,  drawn  by  its  duly  authorized 
not  as  collateral  security,  is  a  presumption  agent,  and  given  and  received  in  full  sat- 


PART  IV.]  PAYMENT.  465 

note  or  bill  is  given  for  part  of  the  debt,  it  is  deemed  payment  of 
such  part,^  even  though  the  debt  is  collaterally  secured  by  a  mort- 
gage.^ If  the  creditor  receives  the  debtor's  check  for  the  amount, 
it  is  payment,  if  expressly  accepted  as  such  ;  "^  unless  it  was  drawn 
colorably,  or  fraudulently,  and  knowingly  without  effects.^  But 
in  the  absence  of  any  evidence  of  an  agreement  to  receive  a  check 
or  draft  in  payment,  it  is  regarded  only  as  the  means  whereby  the 
creditor  may  obtain  payment ;  ^  or,  as  payment  provisionally,  until 
it  has  been  presented  and  refused  ;  if  it  is  dishonored,  it  is  no 
payment  of  the  debt  for  which  it  was  drawn.^  And  if  a  bill 
of  exchange,  given  in  payment  of  a  debt,  is  not  admissible  in 
evidence,  by  being  written  on  a  lorong  stamp,  it  is  not  deemed 
as  payment,  even  if  the  parties  would  have  paid  it  on  due  pre- 
sentment.'^ 

§  521.  But  where  the  debtor's  own  security,  7iot  negotiable,  and 
of  no  higher  nature,  is  taken  for  a  simple  contract  debt,  it  is 
not  ordinarily  taken  as  payment,  unless  expressly  so  agreed; 
except  where  it  is  given  as  a  renewal,  as  before  stated.  Whether 
it  was  intended  as  payment  or  not  is  a  question  for  the  jury,^ 

§  522.  Payment  may  be  proved  by  evidence  of  the  delivery  and 
acceptance  of  hank-notes  ;  which  will  be  deemed  as  payment  at  their 
par  value.9  But  if,  at  the  time  of  delivery  and  acceptance  of  tlie 
notes,  the  bank  had  actually  stopped  payment,  or  the  notes  were 
counterfeit,  the  loss  falls  on  the  debtor,  however  innocent  or  igno- 
rant of  the  facts  he  may  have  been.^*^ 

isfaction  for  a  loss   under   a  policy,   will  8   Cush.  424 ;  Alcock  v.  Hopkins,  6  lb. 

operate  as  a   payment   thereof  before   its  484.] 

presentation   to  "the  secretary,   and  cases  ^  Wilson    r.    Vysar,    4    Taunt.    288 ; 

with    reference    to     similar '  instruments  Brown  v.  Watts,  1  Taunt.  253  ;  Wilson  v. 

cited.]  Kennedy,  1  Esp.  245  ;  Gordon  ».  Strange, 

1  Ilslcv  V.  Jewett,  2  Met.  168.  1  Exch.  R.  477,  S.  P. 

2  Fowler  v.  Bush,  21  Pick.  230.  *  Howland  ».  Coffin,  9  Pick.  42 ;  Cum- 

3  Barnard  r.  Graves,  16  Pick.  41.  [But  ming  v.  Hackley,  8  Johns.  202  ;  Tobey  i-. 
not  unless  so  accepted,  until  it  is  cashed.  Barber,  5  Johns.  68.  So  of  the  debtor's 
Barnet  v.  Smith,  10  Foster  (N.  H.)  256.  order  on  a  third  person.  Hoar  v.  Clute, 
See  Downey  v.  Hicks,  14  How.  (U.  S.)  15  Johns.  224.  [See  Parker  v.  Osgood,  4 
240]  Grav,  456.] 

*  Dennie  r.  Hart,  2  Pick.  204  ;  Frank-  ^  Phillips  v.  Blake,  1  Met  246 ;  Snow 

lin  V.  Vanderpool,  1  Hall  (N.  Y.)  R.  78;  v.  PeiTy,  9  Pick.  539,  542. 

Stedman  v.  Gouch,  1  Esp.  5  ;  Puckford  v.  1°  Lightbodv  t.  The  Ontario  Bank,  11 

Maxwell,  6  T.  R.  52.  Wend.  9 ;  13  Wend.  101  ;  Markle  v.  Hat- 

6  Cromwell  v.  Lovett,  1  Hall  (N.  Y.),  field,   2  Johns.  455;  Young  v.  Adams,  6 

Rej).  56  ;  The  People  v.  Howell,  4  Johns.  Mass.  182  ;  Jones  v.  Ryde,  5  Taunt.  488 ; 

291  ,  Olcott  V.  Rathbone,  5  Wend.  490.  Gloucester  Bank  v.  Salem  Bank,  17  Mass. 

6  Pearce  v.  Davis,  1  M.  &   Rob.  365;  42,43.     It  has  been  said  in  Massachusetts, 

E\«irett  V.  Collins,  2  Campb.  515  ;  Puck-  that  the  solvency  of  the  bank,  where  both 

ford   V.   Maxwell,  6   T.   R.  52  ;  Bond  v.  parties  were  equ'ally  innocent,  was  at  the 

Warden,  9  Jur.  198;    [Zerano  v.  Wilson,  risk  of  the  creditor.      See  6  Mass.   IS."). 

VOL.  II.  SO 


466  LAW   OF  EVIDENCE.  [I'ART  IV. 

§  523.  Proof  of  the  acceptance  of  the  promissory  note  or  hill 
of  a  third  2^erson  will  also  support  the  defence  of  payment.  But 
here  it  must  appear  to  have  been  the  voluntary  act  and  choice 
of  the  creditor,  and  not  a  measure  forced  upon  him,  by  necessity, 
where  nothing  else  could  be  obtained. ^  Thus,  where  the  creditor 
received  the  note  of  a  stranger  who  owed  his  debtor,  the  note 
being  made  payable  to  the  agent  of  the  creditor,  it  was  held  a 
good  payment,  though  the  promisor  afterwards  failed.^  So,  where 
goods  were  bargained  for,  in  exchange  for  a  promissory  note  held 
by  the  purchaser  as  indorsee,  and  were  sold  accordingly,  but  the 
note  proved  to  be  forged,  of  which,  however,  the  purchaser  was 
ignorant,  it  was  held  a  good  payment.^  So,  where  one  entitled  to 
receive  cash  receives  instead  thereof  notes  or  bills  against  a  third 
person,  it  is  payment,  though  the  securities  turn  out  to  be  of 
no  value.*  But  if  the  sale  was  intended  for  cash,  the  payment  by 
the  notes  or  bills  being  no  part  of  the  original  stipulation,^  or  the 
vendor  has  been  induced  to  take  them  by  the  fraudulent  misrepre- 
sentation of  the  vendee,  as  to  the  solvency  of  the  parties,^  or  they 
are  forged,'^  or  they  are  forced  upon  the  vendor  by  the  necessity 
of  the  case,  nothing  better  being  attainable,^  it  is  no  payment. 

But  this  was  reluctantly  admitted  on  the  ^  Wiseman  v.    Lyman,    7    Mass.    286. 

ground  of  supposed  usa^je  alone,  and  was  [*  See  also  Bennesonw.  Thayer,  23111.374.] 

not  the  point  directly  in  jud;^^ment.     The  ^  Ellis  v.  Wild,  6  Mass.  321.     And  see 

same  has  been  held  in  ^Vlahama.     Lowry  Alexander   v.    Owen,  1    T.  E.  225.     So, 

V.  Murrell,  2  Porter,  II.  280.  though  it  be  genuine.     Harris  v.  Johnson, 

1  The  creditor's  omission   to  have   the  3  Cranch,  311. 

notes  indorsed  by  the  party  fVom  whom  lie  *  Fydell  v.  Clark,  1  Esp.  447.     See  also 

receives  them  is  prima  facie  evidence  of  an  Rew  v.  Barber,  3  Cowen,  272  ;  Frisbie  v. 

ao-reement  to  take  them  at  his  own  risk.  Larned,  21  Wend.  450 ;  Arnold  v.  Camp, 

Whitebeck  v.  Van  Ness,   11  Johns.  409;  12  Johns.  409 

Breed  v.  Cook,  15  Johns.  241.  Whether  ^  Ellis  v.  Wild,  6  Mass.  321.  And  see 
the  security  was  accepted  in  satisfaction  of  Owenson  v.  Morse,  7  T.  R.  64.  In  this 
the  original  claim  is  a  matter  of  fact  for  the  case,  the  vendor  received  the  notes  of  bank- 
jury.  Hart  V.  Boiler,  15  S.  &  R.  162;  ers  who  were  in  fact  insolvent,  and  never 
Johnson  ?;.  Weed,  9  Johns.  310.  [*  Where  afterwards  opened  their  house.  See  also 
the  defendant  proved  a  transfer  of  the  note  Salem  Bank  v.  Gloucester  Bank,  17 
of  a  third  person  by  his  indorsement  of  it  Mass.  1. 

without  recourse,  and  plaintitT's  receipt  of  ^  Pierce  v.  Drake,  15  Johns.  475;  Wil- 
payment  in  full  by  the  note,  held  error  to  son  v.  Force,  6  Johns.  110  ;  Brown  y.  Jack- 
refuse  to  instruct  jury  that  defendant  had  son,  2  Wash.  C.  C.  R.  24. 
made  out  prima  facie  case.  Davenport  v.  "^  Marklc  v.  Hatfield,  2  Johns.  455  , 
Schram,  9  Wise.  119.  In  New  York,  the  Bank  of  the  United  States  v.  Bank  of 
acceptance  of  the  note  of  a  third  party  on  Georgia,  10  Wheat.  333  ;  Haigrave  v. 
account  of  the  debt  does  not  satisfy'  the  Dusenbury,  2  Hawks,  326  ;  [Farr  v.  Ste- 
debt,  unless  so  agreed  at  the  time  by  the  vens,  26  Vt.  299.] 

parties.     The  bill  or  note  being  taken  on  a  ^  This  was  Lord   Tenterden's  view  of 

precedent  debt,  the  presumption  is,  it  was  the  facts  in  Robinson  v.  Read,  9  B.  &  C. 

not  taken  as  payment.     Being  taken  con-  449.     [And  whenever  a  security  taken  in 

temporaneously  with  the  contracting  of  the  payment  of  a  demand  is  void,  or  is  avoided 

debt,  the  presumption  is  that  it  was  taken  for  any  cause,  the  creditor  may  bring  an 

as  payment     Noel  v.  Murray,   13  N.   Y.  action  and  recover  on  the  original  cause  of 

167.1  action.     Leonard  v.  Trustees,  &c.,  2  Cnsb 


PART  IV.]  '  PAYMENT.  467 

If,  however,  a  creditor,  who  has  received  a  draft  or  note  upon 
a  third  person,  delays  for  an  unreasonable  time  to  present  it  for 
acceptance  and  payment,  whereby  a  loss  accrues,  the  loss  is  his 
own.i  So^  if  \^Q  alters  the  bill  and  thus  vitiates  it,  he  thereby 
causes  it  to  operate  as  a  satisfaction  of  the  debt.^  So,  if  he  accepts 
from  the  drawee  other  bills  in  payment  of  the  draft,  and  they  turn 
out  to  be  worthless.^ 

§  524.  The  foreclosure  of  a  mortgage^  given  to  secure  the  debt, 
may  also  be  shown  as  a  payment,  made  at  the  time  of  complete 
foreclosure ;  but  if  the  property  mortgaged  is  not,  at  that  time, 
equal  in  value  to  the  amount  due,  it  is  only  payment  'pro  tanto} 
A  legacy,  also,  will  sometimes  be  deemed  a  payment  and  satis- 
faction of  a  debt  due  from  the  testator.  But  to  be  so  taken,  the 
debt  must  have  been  in  existence  and  liquidated,  at  the  date  of 
the  will.^  And  parol  evidence  is  admissible  to  prove  extraneous 
circumstances,  from  which  the  intent  of  the  testator  may  be  in- 
ferred, that  the  legacy  should  go  in  satisfaction  of  the  debt.^ 

§  525.  When  payment  is  made  by  a  remittance  by  post  to  the 
creditor,  it  must  be  shown,  on  the  part  of  the  debtor,  that  the 
letter  was  properly  sealed  and  directed,  and  that  it  was  delivered 
into  the  post-office,  and  not  to  a  private  carrier  or  porter.  He 
must  also  prove,  either  the  express  direction  of  the  creditor  to 
remit  in  that  mode,  or  a  usage  or  course  of  dealing,  from  which 
the  authority  of  the  creditor  may  be  inferred.  Where  these  cir- 
cumstances concur,  and  a  loss  happens,  it  is  the  loss  of  the 
creditor.^ 

464 ;  Perkins  v.  Cumminf^s,  2  Gray,  258 ;         ^  Cuthbert   v.   Peacock,  2   Vem.    593  ; 

Swartwout  v.  Payne,  19  Johns.  294  ;  Sut-  Pane  v.  Fane,  1   Vem.  31,  n.  (2),  by  Mr. 

ton  V.  Toomer,  7  Barn.  &  Cress.  416;  At-  Raithby ;  ante.  Vol.  1,  §§  287,  288,  296. 

kinson  v.  Hawdon,  2  Ad.  &  El.  6-28  ;  Slo-  And  see  Clark  v.  Bo^ardus,  12  Wend.  67  ; 

man  v.  Cox,  5  Tvrw.  174.].  Mnlheran  v.   Gillespie,  Id.  249  ;  Williams 

1  Ciiamberlvn  u.  Delarive,  3  Wils.  353  ;  v.  Crary,  8  Cowen,  246.  [*  A  legacy  to 
Bishop  V.  Chitty,  2  Stra.  1195;  Watts  v.  a  creditor  of  a  sum  less  than  his  debt  is 
Willintr,  2  Dall.  100  ;  Popley  ).-.  Ashlev,  6  not  to  be  applied  towards  payment  of  the 
Mod.  147  ;  Ravmond  v.  Barr,  13  S.  &"  R.  debt,  without  clear  evidome  of  the  testa- 
318;  Roberts  k  Gallaber,  2  Wash.  C.  C.  tor's  intention  that  it  should  be.  Par- 
R.  191  ;  Copper  v.  Power,  Anthon,  R.  49.  ker  ".   Coburn,  10  Alien,  84 ;  2  Story  s 

2  Alderson  v.  Langdale,  3  B.  &  Ad.  660.  Eq.  Jur.  §§  1 104,  1122.] 

3  Bolton  V.  Reichard,  1  Esp.  106.  ^  Warwicke   v.   Noakes,   1    Peake,    G7 ; 
*  Amory  v.   Fairbanks,  3   Mass.    562  ;     Hawkins    v.   Rutt,    Id.    186 ;     Walter  v. 

Hatch  V.  White,  2  Gdl.   152;    Omaly  v.  Haynes,  Ry.  &  M.    149.      [See   True  v. 

Swan,  3  Mason,  474  ;  West  v.  Chamber-  Collins,  3  Allen,  438.]     It  is  held  by  some 

lin,  8  Pick.  336;  Brings   v.  Richmond,  10  that  the  sending  of  bank-notes,  uncut,  will 

Pick.  396;  Case  ».  Boughton,  11   Wend,  not  discharge  the  debtor;  because  among 

106  ;  Spencer  v.  Hartford,  4  Wend.  381.  prudent  people,  it  is  usual  to  cut  such  se- 

5  Le  Sage  v.  Coussmaker,   1   Esp.  187.  curities  in  halves,  and  send  tliein  at  ditter- 

And  see  Strong  v.  Williams,  12  Mass.  391  ;  ent  times.     Peakc  on  Evid.  by  Norns,  p. 

Williams  v.  Crary,  5  Cowen,  368.  412. 


■468  LAW   OF  EVIDENCE.  [PART  IV. 

§  526.  Payment  may  also  be  proved  by  evidence  of  the  delivery 
and  acceptance  of  any  specific  article  or  collateral  thing  in  satisfac- 
tion of  the  debt;  as  has  already  been  shown  in  the  preceding 
pages.i  Such  payment  is  a  good  discharge  even  of  a  judgment.^ 
Payment  even  of  part  of  the  sum  may  be  a  satisfaction  of  the 
whole  debt,  if  so  agreed,  provided  it  be  in  a  manner  collateral 
to  the  original  obligation  ;  as,  if  it  be  paid  before  the  day,  or 
in  a  manner  different  from  the  first  agreement,  or  be  made  by 
a  stranger,  out  of  his  own  moneys,  or  under  a  fair  compensation 
with  all  the  creditors  of  the  party.^ 

§  527.  Payment  may  also  be  presumed  or  inferred  by  the  ju- 
ry from  sufficient  circumstances.  Thus  where,  in  the  ordinary 
course  of  dealing,  a  security,  when  paid,  is  given  up  to  the  party 
who  pays  it,  the  possession  of  the  security  by  the  debtor,  after  the 
day  of  payment,  is  prima  facie  evidence  that  he  has  paid  it.* 
But  the  mere  production  of  a  bill  of  exchange  from  the  custody  of 
the  acceptor  affords  no  presumption  that  he  has  paid  it,  without 
proof  that  it  was  once  in  circulation  after  he  accepted  it.^  Nor 
is  payment  presumed  from  a  receipt  indorsed  on  the  bill,  without 
evidence  that  it  is  the  handwriting  of  a  person  entitled  to  demand 
payment.^  Nor  will  it  be  presumed  from  the  circumstance  of  the 
defendant's  having  drawn  a  check  on  a  bank  or  on  his  banker, 
payable  to  the  plaintiff  or  hearer^  without  proof  that  the  money 
had  been  paid  thereon  to  the  plaintiff;  and  of  this,  the  plaintiff's 
name  on  the  back  of  the  check  will  be  sufficient  evidence.^  And 
where  a  bill  of  exchange,  on  presentment  by  the  bankers  of  the 

1  Supra,  tit.  Accord  and  Satisfac-  *  Breraridjje  v.  Osborne,  1   Stark.  374 , 

XION.  Gibbon    v.    Featherstonhaugh,   Id.    225 ; 

'^  Brown  v.  Feeter,  7  Wend.  301.  Weidner  v.  Schweisart,  9  S.  &  R.  385 , 

8  Co.  Lit.  212  h;  Steinman  v.  Magnus,  Smith  v.  Smitji,  15  N.  Hamp.  R.  55.     See 

1 1  East,  390 ;  Lewis  v.  Jones,  4  B.  &  C.  ante,  Vol.    1 ,   38 ;  f*  Contra,   Buckley   v. 

506;  Ellis  on  Debtor   and    Creditor,  pp.  Saxe,  10  Mich.  326.]     [Baring  v.  Clark,  19 

412,413.   And  see,  s»/«-fl,  tit.  Accord  AND  Pick.  220;  McGee  w.  Prouty,  9  Met.   547. 

Satisfaction.      [*  The  plaintiff's  attor-  But  this  rule  docs  not  apply  "to  a  possession 

ncy  wrote  to  the  defendant,  requesting  him  by  one  of  two  joint  promisors  in  an  action 

to  remit  a  balance  due  to  the  plaintiff,  with  by  him  to  recover  of  tiie  other  one  half  of 

13s.  4f/.  costs.     The  defendant  sent  a  bank-  the  amount  thereof.     Hcald  v.  Davis,  11 

bill  for  the  amount  of  the  balance  only.  The  Cush.  319.] 

I)laintiff's  attorney  wrote  in  answer,  that  ^  Pfiel  v.  Vanbattcnburg,  2  Campb.  439. 
le  would  not  receive  the  bank-bill  unless  ^  Ibid.  [*  But  the  burden  is  upon  the 
the  \3!t.  Ad.  was  paid,  but  did  not  return  it.  plaintiff,  where  the  note  sued  on  has  not 
Tliejiiry  having  found  that  any  objection  left  his  hands,  to  overthrow  the  inference 
to  the  remittance  not  being  in  money  was  that  he  has  made  the  indorsements  and  re- 
waived,  and  that  the  bank-bill  was  refused  celved  the  payments.  Brown  v.  Gooden. 
only  because  it  did  not  include  the  costs,  it  16  Ind.  444.] 
was  held  that  there  was  evidence  of  i)ay-  '  Egg  v.  Barnctt,  3  Esp.  196. 
ment     Caiae  ■}.  Coulton,  1  H.  &  C.  764.] 


PART  IV.]  PAYMENT.  469 

indorsee  to  the  acceptor,  was  not  paid,  but  afterwards  a  stranger 
called  on  the  bankers'  clerk  and  paid  it,  the  clerk  giving  up  the 
bill  to  him  after  indorsing  upon  it  a  general  receipt  of  payment ; 
this  receipt  was  held  no  evidence  of  payment  hy  the  acceptor,  hi  a 
subsequent  action  by  the  indorsee  against  him,^ 

§  528.  Payment  is  also  presumed  from  lapse  of  time.  The  lapse 
of  twenty  years,  without  explanatory  circumstances,  affords  a  pre- 
sumption of  law  that  the  debt  is  paid,  even  though  it  be  due 
liy  specialty,  which  the  court  will  apply,  without  the  aid  of  a 
jury .2  But  it  may  be  inferred  by  the  jury  from  circumstances, 
coupled  with  the  lapse  of  a  shorter  period.^  It  may  also  be 
inferred  from  the  usual  course  of  trade  in  general,  or  from  the 
habit  and  course  of  dealing  between  the  parties.  Thus,  where  the 
defendant  was  regular  in  his  dealings,  and  employed  a  large  num- 
ber of  workmen,  whom  he  was  in  the  habit  of  paying  every  Satur- 
day night,  and  the  plaintiff  had  been  one  of  his  workmen,  and  had 
been  seen  among  them,  waiting  to  receive  his  wages,  but  had 
ceased  to  work  for  the  defendant  for  upwards  of  two  years  ;  this 
was  held  admissible  evidence  to  found  a  presumption  that  he  had 
been  paid  with  the  others.^  So,  where  the  course  of  dealing  be- 
tween the  parties,  engaged  in  daily  sales  of  milk  to  customers, 
was  to  make  a  daily  settlement  and  payment  of  balances  without 
writing,  this  was  held  a  sufficient  ground  to  presume  payment, 
until  the  plaintiff  should  prove  the  contrary .^  So  also  a  receipt 
for  the  last  year's  or  quarter's  rent  \^  prima  facie  evidence  that  all 
rents,  previously  due,  have  been  paid.^ 

1  Phillips  V.  Warren,  14  M.  &  W.  379.  ment.     Strohm's  Appeal,  23  Penn.  State 

2  Ante,  Vol.  1,  §  39  ;  Colsell  v.  Budd,  1  R.  351  ;  Gould  v.  White,  6  Foster,  178; 
Campb.  27  ;  Cope  v.  Humphreys,  14  S.  &  Sellers  v.  Holman,  20  Penn.  State  R.  321 ; 
R.  15;  Ellis  on  Debtor  and  Creditor,  p.  Kline  y.  Kline,  lb.  503  ;  Walker  y.  Wright, 
414;  Morrison  y.  Funk.  23  Penn.  State  R.  2  Jones,  Law,  N.  C.  156;  McQueen  v. 
421.]     [*This  presumption  may  be  con-  Fletcher,  4  Rich.  Eq.  152.] 

trolled  by   evidence  of  part  payment  of  *  Lucas  v.  Novosilieski,  1  Esp.  296. 

principal'or  interest,  or  other  admissions  or  ^  Evans  v.  Birch,  3  Campb.  10. 

circnmstances  from  which  the  jury  would  ^  ^^^g^  Vol.  1,  §  38.^    f*The  payment 

be  authorized  to  find  the  debt  still  unpaid,  of  money  by  an  agent  in  settlement  of  a 

Cheever  v.  Perlev,  11  Allen,  586.]  suit  brought  against  him  by  his  principal 

3  Best  on  Presumption,  §  137  ;  Lesley  r.  to  recover  the  value  of  property  intrusted 
Nones,  7  S.  &  R.  410.  If  the  debt  itself  is  to  him  to  be  sold  or  exchanged,  does  not 
di<i)uted  by  the  defendant,  who  admits  that  create  a  legal  presumption  that  the  agent's 
it  lias  not  been  paid,  lapse  of  time,  though  expenses  and  commissions  for  services  were 
it  cannot  afford  any  presumption  of  pay-  included  and  adjusted  in  the  eame  settle- 
ment, may  afford  a  presumption  against  ment,  although  the  principal  received  the 
the  original  existence  of  the  debt.  Chris-  money  with  that  belief  and  understanding ; 
tophers  v.  Sparke,  2  J.  &  W.  228  ;  Bander  but  the  evidence  should  be  left  to  the  jury 
V.  Snyder,  5  Barb.  S.  C.  R.  63.  [The  to  say  whether  both  parties  so  understood 
lapse  of  seven  years  after  a  legacy  is  pay-  and  agreed.  And  in  such  case  the  general 
able  does  not  raise  a  presumption  of  pay-  burden  of  proof  remains  with  the  defend- 


470 


LAW   OF   EVIDENCE, 


[part  IV. 


§  529.  In  regard  to  the  ascription  or  appropriation  of  paymentB^ 
the  general  rule  of  law  is,  that  a  debtor  owing  several  debts  to 
the  same  creditor  has  a  right  to  apply  his  payment,  at  the  timO 
of  making  it,  to  which  debt  he  pleases.  But  this  rule  applies  only 
to  voluntary  payments,  and  not  to  those  made  under  compvilsory 
process  of  law.^  If  he  makes  a  general  payment  without  appro 
priating  it,  the  creditor  may  apply  it  as  he  pleases.^  And  whero 
neither  party  appropriates  it,  the  law  will  apply  it  according  to 
its  own  view  of  the  intrinsic  justice  and  equity  of  the  case.^ 


ant  to  show  that  the  agent's  claim  has 
been  satisfied  ;  but  if,  upon  the  settlement, 
the  agent  did  not  make  or  disclose  any 
claim  upon  his  principal,  it  is  competent 
for  the  jury  to  presume  that  it  was  included 
and  adjusted  in  the  settlement.  Walton 
V.  Eldr'idge,  1  Allen,  203.] 

1  Blackstone  Bank  v.  Hill,  10  Pick.  129  ; 
U.  States  V.  Bradbury,  Davies,  R.  146. 

2  [Nash  V.  Hodgson,  31  Eng.  Law  & 
Eq.  555.  And  if  the  money  is  paid  by  the 
debtor,  without  any  appropriation  thereof, 
to  an  attorney  of  the  creditors,  the  attorney 
may  make  the  appropriation.  Carpenter 
t  Goin,  19  N.  H.  479.] 

^  Per  Story,  J.,  in  Cremer  v.  Higginson, 
1  Mason,  338 ;  1  Story  on  Equity,  §  459 
h;  United  States  v.  Wardwell,  5  Mason, 
85  ;  Seymour  o.  Van  Slyck,  8  Wend.  403  ; 
Chitty  on  Contracts,  p.  382,  and  cases 
there  cited.  Clayton's  case  in  Devaynes 
V.  Noble,  1  Meriv.  605  -  607  ;  Ellis  on 
Debtor  and  Creditor,  pp.  406-412.  The 
doctrine  of  the  Roman  Law  on  this  subject, 
and  its  recognition  in  adjudged  cases  in 
the  common  law,  are  stated  by  Mr.  Cowen, 
in  a  note  to  the  case  of  Pattison  v.  Hull, 
9  Cowen,  747,  as  follows:  "A  moment's 
recurrence  to  the  civil  law  will  convince 
the  learned  I'cader  how  much  we  have  bor- 
rowed from  it  almost  without  credit.  The 
whole  text  of  that  law,  in  relation  to  the 
subject  under  consideration,  is  contained 
passim  in  tlie  Digest  (Lib.  46,  tit.  3,  De 
solulionihus  et  Uberationihus)  ;  as  is  rendered 
into  English  by  Strahan,  from  the  French 
of  Domat's  Civil  Law,  in  its  natural  order, 
as  follows :  — 

"  '  1.  If  a  debtor,  who  owes  to  a  creditor 
different  debts,  hath  a  mind  to  pay  one  of 
them,  he  is  at  liberty  to  acquit  whichsoever 
of  them  he  pleases  ;  and  tlie  creditor  can- 
not refuse  to  receive  payment  of  it ;  for 
there  is  not  any  one  of  them  which  the 
debtor  may  not  acquit,  although  he  pays 
nothing  of  all  the  other  debts,  pi-ovided  he 
acquit  entirely  the  debt  which  he  offers  to 

"  Tins  is  precisely  the  common  law. 
Owing  two  debts  to  the  same  person,  you 


may  pay  which  yoii  please,  but  you  must 
tender  the  whole  debt.  The  creditor  is  not 
bound  to  take  part  of  it,  though  he  may 
do  so  if  he  choose.  (22  Ed.  4.  25;  Br. 
Condition,  pi.  181;  Lofft's  Gilb.  330; 
Pinnel's  case,  5  Co.  117;  Colt  r.  Netter- 
ville,  2  P.  Wms.  304;  Anon.  Cro.  Eliz. 
68.)  Hawkshaw  v.  Rawlings  (1  Stra.  23), 
that  the  debtor  shall  not  apply  the  money, 
is  not  law.  There  are  fifteen  or  twenty 
cases  the  other  way. 

" '  2.  If  in  the  same  case  of  a  debtor  who 
owes  several  debt."-  to  one  and  the  same 
creditor,  the  said  debtor  makes  a  payment 
to  him,  without  declaring  at  the  same 
time  which  of  the  debts  he  has  a  mind  to 
discharge,  whether  it  be  that  he  gives  him 
a  sum  of  money  indefinitely  in  part  pay- 
ment of  what  he  owes  him,  or  that  there  be 
a  compensation  [i.  e.  a  set-oft']  of  debts 
agreed  on  between  the  debtor  and  creditor, 
or  in  some  other  manner,  the  debtor  will 
have  always  the  same  liberty  of  applying 
the  payment  to  whichsoever  of  the  debts 
he  has  a  mind  to  acquit.  But  if  the  cred- 
itor were  to  apply  the  payment,  he  could 
apply  it  only  to  that  debt  which  he  him- 
self would  discharge  in  the  first  place,  in 
case  he  were  the  debtor,  for  equity  requires 
that  he  should  act  in  the  affair  of  his 
debtor  as  he  would  do  in  his  own.  And 
if,  for  example,  in  the  case  of  two  del)ts, 
one  of  them  were  controverted,  and  the 
other  clear,  the  creditor  could  not  apply 
the  payment  to  the  debt  which  is  contested 
by  the  debtor.' 

"  The  right  of  the  debtor  to  apply  the 
payment,  whether  total  or  partial,  if  he  do 
so  at  the  time,  is  recognized  by  all  the 
cases.  As  to  tlie  above  doctrine  restrain- 
ing the  creditor  to  an  application  most 
favorable  to  the  rights  of  the  debtor,  one 
cannot  read  the  case  of  Goddard  v.  Cox, 
(2  Str.  1194,)  without  being  struck  with 
the  similarity  both  in  principle  and  illus- 
tration. The  defendant  o\Tcd  the  plaintiff' 
three  debts;  one  he  contracted  himself,  a 
second  he  owed  absolutely  in  light  of  his 
wife,  and  the  third  was  due  from  his  wile 
as  executrix.     The  defendant  made  seveial 


PART  IV.] 


PAYMENT. 


471 


§  530.    An  appropriation  hy  the  debtor  may  be  proved,  either  by 
his  express  declaration,  or  by  auy  circumstances  from  wliich  liis 


indefinite  payments,  after  wliicli  his  cred- 
itur  sued  him.  Chief  Justice  Lee  held  the 
whole  of  the  above  civil-law  doctrine ;  1 . 
It  was  agreed  the  defendant  had  the  first 
right  to  apply  the  payments;  2.  The  chief 
justice  held/  there  being  no  disection  by 
him,  that  thereby  the  right  devolved  to  the 
plaintiff.  And  the  defendant  being  by  the 
marriage  equally  a  debtor  for  what  his 
wife  received  dnni  sola,  as  for  what  was  af- 
ter, the  plaintiff  might  apply  the  money 
received  to  discharge  the  wife's  own  debt. 
'But  as  to  the  demand  against  her  asex- 
ecutrix,  the  validity  of  which  depended 
upon  the  question  of  assets,  and  manner  of 
administering  them,  he  was  of  opinion  the 
plaintiff  could  not  apply  any  of  tiie  money 
f  «iid  by  the  defendant  to  the  discharge  of 
tiat  demand.' 

"  '  3.  In  all  cases  where  a  debtor,  owing 
peveral  debts  to  one  and  the  same  creditor, 
IS  found  to  have  made  some  payments,  of 
which  the  application  has  not  been  made 
by  the  mutual  consent  of  the  parties,  and 
where  it  is  necessary  that  it  be  regulated 
either  by  a  court  of  justice  or  by  arbitra- 
tors, the  payments  ought  to  be  applied  to 
the  debts  which  lie  heaviest  on  the  debtor, 
and  which  it  concerns  him  most  to  dis- 
charge. (12  Mod.  559;  2  Brownl.  107, 
108;  1  Vern.  24;  2  Freem.  261  ;  I  Ld. 
Raym.  286 ;  1  Comb.  46.3 ;  Peake,  N.  P. 
Cas.  64.)  Thus  a  payment  is  applied 
rather  to  a  debt  of  which  the  non-payment 
would  expose  the  debtor  to  some  pe"nalty, 
and  to  costs  and  damages  (12  Mod.  .5.59  ; 
2  Brownl.  107,  108  ;  1  Vern.  24  ;  2  Freem. 
261  ;  1  Ld.  Ravm.  286  ;  1  Comb.  463  ; 
Peake,  N.  P.  Cas.  64  ;  4  Har.  &  Johns. 
754  ;  2  Id.  402  ;  8  Mod.  236)  ;  or  in  the 
payment  of  which  his  honor  might  be  con- 
cerned, than  to  a  debt  of  which  the  non- 
payment would  not  be  attended  with  such 
consequences.  Thus  a  payment  is  applied 
to  the  discharge  of  a  debt  for  which  a  sure- 
ty is  bound,  rather  than  to  acquit  what 
the  debtor  is  singly  bound  for  without  giv- 
ing any  security  "(Marryatts  v.  White,  2 
Stark.  Rep.  101  ;  Plomer  v.  Long,  1  Id. 
153,  contra  ) ;  or  to  the  discharge  of  what 
he  owes  in  his  own  name,  rather  than 
what  he  stands  engaged  for  as  surety  for 
another.  Thus  a  payment  is  applied  to  a 
debt  for  whiih  the  debtor  has  given  pawns 
and  mortgages,  rather  than  to  a  debt  due 
by  a  simple  bond  or  promise  (1  Vern. 
24  ;  1  Har  &  Johns.  754 ;  2  Id.  402  ) ; 
rather  to  a  debt  of  which  the  term  has 
already  come,  than  the  one  that  is  not 
yet  due  ( Hammersly  v.  Knowlys,  2  Esp. 
II.  ft<i6 ;  Niagara  Bank  w    Rosevelt,  per 


Woodworth,  J.,  9  Cowen,  R.  412  ;  Baker 
V.  Stackpoole,  per  Savage,  Ch.  J.,  9  Cow- 
en,  R.  436  )  ;  or  to  an  old  debt  before  a 
new  one  (1  Meriv.  608  ) ;  and  rather  to  a 
debt  that  is  clear  and  liquid  than  to  one 
that  is  in  dispute  (Goddard  v.  Cox,  2 
Str.  1194)  ;  or  to  a  pure  and  simple  debt 
before  one  that  is  conditional  (Ibid,  and 
9  Cowen,  R.  412).' 

"  I  have  here  interpolated  the  common- 
law  cases  in  the  text  of  the  civil  law.  On 
examining  them,  it  will  be  found  that  al- 
most every  word  of  the  last  quotation  has 
been  expressly  sanctioned  by  the  English 
courts. 

"  '  4.  When  a  payment  made  to  a  cred- 
itor to  whom  several  debts  are  due,  ex- 
ceeds the  debt  to  which  it  ought  to  be 
applied,  the  overplus  ought  to  be  applied 
to  the  discharge  of  the  debt  which  follows, 
according  to  the  order  explained  in  the 
preceding  article,  unless  the  debtor  makes 
another  choice.' 

"  This  follows,  of  course,  from  principles 
before  stated. 

"  '5.  If  a  debtor  makes  a  payment  to 
discharge  debts  which  of  their  nature  bear 
interest,  such  as  treat  of  a  marriage  portion, 
or  what  is  due  by  virtue  of  a  contract  of 
sale,  or  that  the  same  be  due  by  a  sentence 
of  a  court  of  justice,  and  the  payment  be 
not  sufficient  to  acquit  both  the  principal 
and  the  interest  due  thereon,  the  payment 
will  be  applied  in  the  first  place  to  the  dis- 
charge of  the  interest,  and  the  overplus  to 
the  discharge  of  a  part  of  the  principal 
sum. 

" '  6.  If,  in  the  cases  of  the  foregoing 
article,  the  creditor  had  given  an  acquit- 
tance in  general  for  prir^cipal  and  interest, 
the  pavment  would  not  be  applied  in  an 
equal  proportion  to  the  discharge  of  a  part 
of  the  principal  and  a  part  of  the  interest ; 
but  in  the  first  place  all  the  interest  due 
would  be  cleared  off,  and  the  remainder 
would  be  applied  to  the  discharge  of  the 
principal.' 

"  The  last  two  paragraphs  contain  a 
doctrine  perfectly  naturalized  by  all  our 
cases,  from  Chase  v.  Box  (2  Freem.  261) 
to  State  of  Connecticut  v.  Jackson  (1 
Johns.  Ch.  Rep.  17,  and  vid.  Stoughton  v. 
Liuch  (2  lb.  209).  Vid.  also  Hening'a 
ed.  of  Maxims  in  Law  in  Equity,  App.  1 
to  Francis's  Maxims,  pp.  106,  108,  113,* 
and  the  eases  there  cited.  Also  Williams 
V.  Houghtaling,  3  Cowen,  86,  87,  88,  89. 
note  (a),  with  the  cases  there  cited). 

"'  7.  When  a  debtor,  obliging  himself 
to  a  creditor  for  several  causes  at  one  and 
the  same  time,  gives  him  pawns  or  mort 


472  LAW   OF  EVIDENCE.  [PART  IV. 

intention  can  be  inferred.^  But  it  seems,  that  this  intention  must 
be  signified  to  tlie  creditor  at  the  time ;  for  an  entry  made  in  his 
own  books  lias  been  held  insufficient  to  determine  the  application 
of  the  payment.^  Thus,  where  the  debtor  owed  his  creditor  a 
private  debt,  and  also  was  indebted  to  him  as  the  agent  of  several 
annuitants,  for  which  latter  debts  his  surety  was  also  liable  ;  and 
both  the  debtor  and  his  surety  being  called  upon  in  behalf  of  the 
annuitants,  the  debtor  made  a  general  payment,  without  any 
specific  appropriation  at  the  time;  it  was  held,  that  the  circum- 
stances showed  his  intention  to  apply  it  to  the  annuities,  and  that 
the  creditor  was  therefore  not  at  liberty  to  ascribe  it  to  his  private 
debt.^  So,  if  there  be  two  debts,  and  the  debtor  pays,  without 
appropriation,  a  sum  precisely  equal  to  what  remains  due  on  one 
of  them,  but  greater  than  the  amount  of  the  other,  this  will  be 
regarded  as  having  been  intended  in  discharge  of  the  former  debt.* 
So,  if  there  be  two  debts,  the  validity  of  one  of  whicli  is  disputed, 
while  the  other  is  acknowledged,  a  general  payment  will  be  pre- 
sumed to  have  been  made  on  account  of  the  latter.^  But  this 
right  of  the  debtor  to  appropriate  his  payment  is  not  without 
some  limitation.  Thus,  for  example,  he  cannot  apply  it  to  the 
principal  only,  where  the  debt  carries  interest ;  for,  by  law,  every 
payment  towards  such  debts  shall  be  first  applied  to  keep  down 
the  interest.^ 

gages,  which  he  engages  for  the  security  tributed  between  the  two  debts,  has  never 

of  all  the  debts,  the  money  which  is  raised  been  exactly  adjudged  with  us,  though  the 

by   the  sale  of  the  pawns  and  mortgages  case  interpohited   is   about   the   same    in 

will  be  applied  in  an  equal  proportion  to  principle.     And   see   what    Holt,    Cli.  J., 

the  discliarge  of  every  one  of  the  debts,  says  in  Styart  v.  Rowland  (2  Show.  Kep. 

(Perry  v.  Roberts,  2  Ch.  Cas.  84,  some-  2f6)."     See  9  Cowen,  R.  773-777.     See 

what  similar  in   principle.)     But   if    the  also   Smith  v.   Screven,   1   McCord,  368; 

debts  were  contracted  at  divers  times  upon  Mayor,    &c.  of  Alexandria   v.   Patten,   4 

tlie  security  of  the  same  pawns  and  mort-  Cranch,  316  :  Mann  v.  Marsh,  2  Caines, 

gages,  so  as  that  the  debtor  had  mortgaged  99. 

for  the  last  debts  what  siiould  remain  of  ^  Waters  v.  Tompkins,  2  C.  M.  &  R. 

the  pledge,  after  payment  of  the  first,  the  723;  1  Tyrw.  &  Grang.  137,  S.  C. ;  Pe- 

moneys  arising  from  the  pledges  would  in  ters    v.  Anderson,  5    Taunt.    596 ;   New- 

thia  case  be  applied  in  the  first  place  to  the  march  c.  Clay,    14  East,   239;    Stone  v. 

discharge  of  tlie  debt  of  the  oldest  stand-  Seymour,  15    Wend.   19.     The  same  rule 

ing.     And  l)0th  in  the  one  and  the  other  applies    to    appro|)riations    by    creditors. 

case,  if  any  interest  be  due  on  account  of  Seymour  v.  Van  iSlyck,  8  VVcnd.  403. 

the  debt  which  is  to  be  discharged  by  the  ^  Manning  v.  Wcsternc,  2  Vern.  606. 

payment,  the  same  will  be  paid  before  any  ^  Shaw  v.  Picton,  4  B.  &  C.  715. 

part  thereof  be  applied  to  the  discharge  of  *  Robert  v.  Garnie,  3  Caines,  14  ;  Mar- 

the  i)rincipal.'  ryatts  v.  White,  2  Stark.  R.  101. 

"  Tiiis  paragraph  contains  the  familiar  ^  Tayloe  v.  Sandiford,  7  Wheat.  20,  21. 

doctrine  of  priority  of  pledges ;  and  follows  ®  Gwinn   i\  Wliitaker,  1   H.  &  J.  754; 

out  the  corollary  of  applying  partial  ])ay-  Frazier  i'.  Hyland.  lb.  93  ;  Tracy  l'.  Wik- 


ment  to  discharge  interest  in  the  first  place,  off,  1  Dall.  124;  Norwood  v.  Maimitijr,  2 
The  proposition,  that  a  payment  on  pawns,  Nott  &  McCord,  395;  Dean  v.  Williams 
tc.  for  simultaneous  debts,  shall  be  dis-     17  Mass.  417;  Fay  y.  Bradley,  1  Pick.  194. 


PART  rV.]  PAYJfENT.  473 

§  531.  The  riglit  of  appropriation  hy  the  credif/jv^  whero  the 
debtor  makes  none,  is  subject  to  some  exceptionn.  ThuH,  if  one 
debt  was  due  by  the  debtor  as  executor,  and  another  was  due  in 
his  private  capacity,  the  creditor  shall  not  ascribe  a  general  pay- 
ment to  the  former  debt,  for  its  validity  will  depend  on  the  ques- 
tion of  assets.^  So,  if  one  of  two  debts  was  contracted  while  the 
debtor  was  a  trader  within  the  bankrupt  laws,  and  the  other  after- 
wards, the  creditor  will  not  be  permitted  to  apply  a  general  pay- 
ment to  the  latter,  so  as  to  expose  the  debtor  to  a  commission  of 
bankruptcy.^  So,  if  one  of  the  creditor's  claims  is  absolute,  and 
the  other  is  contingent,  as,  if  he  is  an  indorser  or  surety  for  the 
debtor,  who  makes  a  general  payment ;  the  creditor  will  be  bound 
to  appropriate  it  to  the  absolute  debt  alone.^  If  one  of  two  claims 
is  legal,  and  the  other  equitable,  the  creditor  is  bound  to  apply 
the  payment  to  the  former.*  If  a  partner  in  trade,  being  indebted 
botli  as  a  member  of  the  firm,  and  also  on  his  own  private  account, 
pays  the  money  of  the  firm,  tlie  creditor  is  bound  to  apply  it  to 
the  partnership  debt.^  Aiid  the  account-books  of  the  creditor, 
with  proof  that  the  entries  were  contemporaneous  with  the  fact  of 
payment,  are  competent  evidence  in  his  favor,  to  show  to  v/liicli 
of  two  accounts  he  applied  a  general  payment."^ 

§  531  a.  The  j/rindple  on  which  these  and  other  exceptions  are 
founded  seems  to  be  this :  that  the  debtor,  by  waiving  his  right 
of  appropriation  in  favor  of  the  creditor,  could  not  have  intended 
that  it  should  be  exercised  to  his  own  injury  ;  but,  on  the  contrary, 
that  he  relied  on  the  creditor's  making  an  appropriation  to  which 
he  could  not  reasonably  or  justly  object.  The  creditor,  therefore, 
never  acquires  the  right  to  apply  a  payment  with  a  view  merely 
to  his  own  interest  or  convenience,  unless  the  debtor  has  had  an 
opportunity  to  direct  its  application,  by  having  the  money  pass 
through  his  own  hands,  or  under  his  own  control.     And  upon  the 

1  Doirgard  v.  Cox,  2  Stra.  1194.  6  Taunt,  h'il.     And  gee  Bancroft  v.  Da- 

2  Me^'gott  V.  Mills,  1  lA.  Kaym.  287  ;     laas,  6  \Va.shb.  4.')6. 

Dawe  V.  Iloldsworth,  I  Peake,  64.  ■''  Van  Rensselaer  v.  Roberts,  5  Dcnio, 

2  Niaj^ara  Hank  v.  ko.'i^;velt.  9  Cowen,  470. 

409,   412.     [See  Upham  v.  Lefavour,   11  *  Thompson  r.  Brown,  1  M.  &  Malk. 

Met.   174,   185;  Alden  v.  Capen,  5  Met  40.     (And  if  th';  holrkr  of  two  notes  of  the 

268.]  game   maker   recriv^s  from   him   in   part 

*  Birch  V.  Tehbutt,  2  Stark.  74  ;  God-  paymf;nt  a  sum   smaller  than  either,   ho 

dard  v.  Hod{?es,  1  C.  &  Mecs.  .33  ;  .3  Tyrw.  may  apply  the  whole  on  either  note,  but 

259,  S.  C.     But  where  the  equitable  debt  not  half  on  ea<;h  note  without  the  debtor** 

was  prior  to  the  other,  the  creditor  has  in  appropriation.     Whf;eler  v.  House,  1  Wil- 

one  case  been  f>ermitted  Ui  apply  the  pay-  liams  (Vt.j  735.] 
ment  to  the  former,     Bosanquet  v.  Wray, 


474  LAW   OF   EVIDENCE.  [PART  IV. 

above  principle  it  has  been  held  that  where  a  general  payment  was 
made  to  a  creditor  who  held  three  promissory  notes  against  the 
debtor,  all  which  were  within  the  bar  of  the  statute  of  limitations, 
the  creditor  was  not  at  liberty  to  apply  a  part  of  the  money  to  each 
of  the  notes,  so  as  to  revive  his  remedy  upon  them  all ;  but  must 
make  his  election  of  one  only,  and  apply  the  payment  to  that  one 
alone.i 

§  532.  At  what  time  the  creditor  must  exercise  this  right  of  ap- 
propriation, whether  forthwith,  upon  the  receipt  of  a  general  pay- 
ment, or  whether  at  any  subsequent  time,  at  his  pleasure,  is  not 
clearly  settled  by  the  English  decisions  ;  but  the  weight  of  author- 
ity seems  in  favor  of  his  right  to  make  the  election  at  any  time 
when  he  pleases.^  And  this  unlimited  right  has  been  recognized 
in  the  United  States  ;  subject  only  to  this  restriction,  that  he  can- 
not appropriate  a  general  payment  to  a  debt  created  after  the  pay- 
ment was  made.^ 

§  532  a.  After  a  payment  has  been  rightfully  ascribed  to  one  of 
several  debts,  it  is  not  in  the  power  of  either  party  alone  to  change 
it.  But  if  both  parties  consent,  the  ascription  may  be  changed  to 
another  debt ;  in  which  case  the  indebtment  discharged  by  the 
former  appropriation  of  the  money  is  revived.* 

§  533.  Where  neither  party  has  applied  the  payment,  but  it  is 
left  to  be  a-ppropriated  by  laio^  the  general  principle  adopted  by  the 
American  courts  is  to  apply  it  as  we  have  already  stated,  accord- 
ing to  the  mtrinsic  justice  and  equity  of  the  case.  But  this  princi- 
ple of  application  is  administered  by  certain  rules  found  by  experi- 
ence usually  to  lead  to  equitable  results.  It  has  sometimes  been 
held,  that  the  appropriation  ought  to  be  made  according  to  the  in- 
terest of  the  debtor,  such  being  his  presumed  intention.  This  is 
the  rule  of  the  Roman  law,  and  probably  is  the  law  of  modern 

1  Ayer  v.  Hawkins,  19  Verm.  26.  [But  Cranch,  317 ;  Baker  v.  Stackj'oolc,  9  Cow- 
a  payment  made  by  a  debtor  to  a  creditor  en,  420, 436.  And  sec  Marsh  v  Iloulditch, 
to  whom  he  owes  several  distinct  debts,  cited  in  Chitty  on  Bills,  p.  437,  note  (c), 
without  any  direction  as  to  its  application,  8th  edit.;  [Upham  v.  Lcfavour,  11  Met. 
and  iinmeiliately  applied  by  the  creditor  to  174,  184;  Watt  v.  Hoch,  25  Penn.  State 
a  debt  barred  by  tlie  statute  of  limitations,  R.  411.] 

is  not  such  a  payment  as  will  take  tlio  re-  *  Rundlett    v.    Small,    12    Shcpl.    29. 

mainder  of  that  debt  out  of  the  operation  And  see  Codman  v.  Armstrong,  .5  Shepl. 

of  the  statute.     Pond  v.  WiUiams,  I  Gray,  91  ;  Chancellor  v.  Schott,  23  Peiin.  State  R. 

630.]  68.    Where  payments  are  made  on  account 

2  Clayton's  case,  in  DevayTies  v.  Noble,  of  illegal  sales  of  intoxicatinrr  liquor,  the 
1  Meiiv.  60.5,  607  ;  Ellis  on  Debtor  and  debtor  cannot  afterwards  recall  them  and 
Creditor,  pp.  406  -  408  ;  INlills  v.  Fowkes,  have  them  appropriated  to  other  and  legal 
5  Bing.  N.  C.  455,  per  Coltman,  J.  debts.     Caldwell  v.  Wentworth,  14  N.  H. 

8  Mayor,  &c.  of  Alexandria  v.  Patten,  4     431.] 


PART  IV.]  PAYMENT.  475 

continental  Europe  ;  ^  and  it  has  been  recognized  in  several  of  the 
United  States.^  But,  on  the  other  hand,  the  correctness  of  this 
rule,  as  one  of  universal  application,  has  been  expressly  denied  by 
the  highest  authority.  For  as,  when  a  debtor  fails  to  avail  him- 
self of  the  power  which  he  possesses,  in  consequence  of  which  that 
power  devolves  on  the  creditor,  it  does  not  appear  unreasonable  to 
suppose  that  he  is  content  with  the  manner  in  which  the  creditor 
will  exercise  it ;  so,  if  neither  party  avails  himself  of  his  power,  in 
consequence  of  which  it  devolves  on  the  court,  it  would  seem 
equally  reasonable  to  suppose  that  both  were  content  with  the 
manner  in  which  the  court  will  exercise  it ;  and  that  the  only  rule 
which  it  can  be  presumed  that  the  court  will  adopt  is  the  rule  of 
justipe  and  equity  between  the  parties.^  Therefore,  where  a  gen- 
eral payment  is  made  without  application  by  either  party,  and 
there  are  divers  claims,  some  of  which  are  but  imperfectly  and 
partially  secured,  the  court  will  apply  it  to  those  debts  for  which 
the  security  is  most  precarious.*  So,  where  there  are  items  of 
debt  and  credit  in  a  running  account,  in  the  absence  of  any  specific 
appropriation,  the  credits  will  ordinarily  be  applied  to  the  discharge 
of  the  items  of  debt  antecedently  due,  in  the  order  of  the  ac- 
count.^ But  this  rule  may  be  varied  by  circumstances. ^  Thus, 
where  an  agent  renders  an  account,  charging  himself  with  a  bal- 
ance, and  continues  afterwards  to  receive  moneys  for  his  principal, 
and  to  make  payments,  his  subsequent  payments  are  not  necessa- 
rily to  be  ascribed  to  the  previous  balance,  if  the  subsequent  re- 

1  Poth.  Obi.  Part  3,  ch.  1,  art.  7,  §  530;  99,  112;  The  United  States  v.  Wardwell, 
1  White's  New  Kecopil.  B.  2,  tit.  11,  5  Mason,  82,  87;  The  United  States  v. 
pp.  164,  165;  Van  Der  Linden's  Laws  of  Kirkpatrick,  9  Wheat.  720;  Sterndale  v. 
Holland,  B.  1,  cli.  18,  sec.  1,  Henry's  edit.  Hankinson,  1  Sim.  393  ;  Smith  v.  Wigley, 
p.  267;  Grotius  Introd.  to  Dutch  Jurisp.  3  M.  &  Scott,  174;  Thompson  v.  Brown, 
B.  3,  ch.  39,  sec.  15,  p.  458,  Herbert's  1  M.  &  Malk.  40.  [When  accounts  are 
Tr. ;  Clayton's  case,  in  Devaynes  v.  No-  settled  yearly,  and  the  balance  is  each  year 
ble,  1  Mcriv.  605,  606;  Baker  r.  Stack-  transferred  to  the  new  account,  if  no  appro- 
poole,  9  Cowen,  435 ;  Civil  Code  of  priation  is  made  of  the  payments  by  the 
France,  art.  1253-1256;  Gass  v.  Stinson,  parries,  they  must  be  applied  in  the  order 
3  Sumn.  99,  110.  of  priority,  so  that  each  payment  shall  go 

2  Pattison  v.  Hull,  9  Cowen,  747,  per  to  discharge  the  earliest  debt.  Sandwich 
Cowen,  J.  ;  Civil  Code  of  Louisiana,  art.  v.  Fish,  2  Gray,  298,  301 ;  Coleraine  v. 
2159-2161.  Bell,  9  Met.  499;  Boston  Hat  Manuf.  v. 

3  Field  V.  Holland,  6  Cranch,  8,  27,  28.  Messinger,  2  Pick.  223 ;  Allcott  v.  Strong, 
And  see  Chitty  v.  Naish,  2  Dowl.  P.  C.  9  Cush.  323  ;  Upham  v.  Lefavour,  1 1  Met. 
511  ;  Brazier  v.  Bryant,  Id.  477;  Henni-  174;  Millikin  v.  Tufts,  31  Maine,  497; 
ker  t;.  Wigg,  4  Ad  &  El.  792,  N.  S. ;  Cow-  Thompson  v.  Phelan,  2  Foster  (N.  H.) 
perthwaite  v.  Sheffield,  1  Sandf.  S.  C.  R.  339;  Shedd  v.  WUson,  1  Williams  (Vt.) 
416.  478;  Truscott  v.  King,  ^  Selden  (N.  Y.) 

4  Ibid.  147;  Dows  u.  Morewood,   10  Barb.  183; 
6  The  Postmaster-General  v.  Furber,  4     Han-ison  v.  Johnston,  27  Ala.  445.] 

Mason.  333 ;    Gass  v.  Stinson,  3   Sumn.        ^  Wilson  v.  Hirst,  1  Nev.  &  Man.  746. 


476  LAW   OF  EVIDENCE.  [PART  IV. 

ceipts  are  equal  to  such  payments.^  Where  the  mortgagee  of  two 
parcels  of  land,  mortgaged  for  the  same  debt,  released  one  of  them 
for  the  assignee  of  the  mortgagor  of  that  parcel,  the  money  received 
for  the  release  was  appropriated  to  the  mortgage  debt,  in  favor  of 
an  assignee  of  the  other  parcel,  notwithstanding  the  mortgagor  was 
indebted  to  the  creditor  on  other  accounts.^  So,  if  one  debt  is 
illegal,  and  the  other  is  lawful,  or  if  one  debt  is  not  yet  payable, 
but  the  other  is  already  overdue,  a  general  payment  will  be  as- 
cribed to  the  latter.^  And  if  one  debt  bears  interest,  and  another 
does  not,  the  payment  will  be  applied  to  the  debt  bearing  interest.* 

§  534.  The  mere  fact,  that  one  of  several  debts  is  secured  by  a 
surety,  does  not  itself  entitle  that  debt  to  a  preference  in  the  ap- 
propriation of  a  general  payment.  And  therefore,  where  there 
was  a  prior  debt  outstanding,  and  afterwards  a  new  debt  was  cre- 
ated, for  which  a  bond  was  given  with  a  surety,  the  creditor  was 
held  at  liberty  to  ascribe  a  general  payment  to  the  prior  debt, 
though  the  surety  was  not  informed  of  its  existence  when  he  be- 
came bound ;  for  he  should  have  inquired  for  himself.^  But 
where  a  guaranty  was  expressed  to  be  for  goods  to  be  thereafter 
delivered,  and  not  for  a  debt  which  then  existed ;  and  goods  were 
accordingly  supplied  from  time  to  time,  and  payments  made,  for 
some  of  which  a  discount  was  allowed  for  payments  in  anticipation 
of  the  usual  term  of  credit  upon  such  sales  ;  it  was  held,  in  favor 
of  the  surety,  that  the  payments  ought  to  be  applied  to  the  latter 
account.^ 

§  535.    And  if  one  of  two  demands  is  within  the  operation  ol 
the  statute  of  Umitatmis,  and  the  other  is  not,  this  circumstance 


1  Lvsaght  V.  Walker,  2  Bligh,  N.  S.  1.  *  Heyward  v.  Lomax,  1  Vera.  24;  Ba- 

2  Hicks    V.   Bingham,    11    Mass.    300;  con  c.  Brown,  1  Bil)b,  334 ;  Supra,  %  530. 
Gwinn  v.  Whitaker,  1  H.  &  J.  754.  [Wliere  the  debtor  is  indebted  under  asev- 

8  "Wriglit  V.  Laing,  3  B.  &  C.  165  ;  4  D.  cral  hability,  and  also  under  a  joint  liabili- 

&  R.  783,   S,   C. ;  Ex  parte  Randleson,  2  tj,  and  makes  a  payment,  there  being  no 

Dea.  &    Chit.   534;     McDonnell    v.   The  evidence  that  a  different  appropriation  was 

Blackstone  Canal  Co.,  5  Mason,  11  ;  Gass  intended,  or  tliat  the  money  was  denved 

V.  Ktinson,  3  Sumn.  99, 112;  Parchman  v.  from  the  fund  from  which  the  joint  liabili- 

McKinncy,  12  S.  &  M.  631.    [If  a  creditor  ty  was  to  be  met,  the  law  applies  it  to  dis- 

holds  two  demands,  one  lawful  and  anoth-  charge  the  several  liability,  that  being  the 

er  positively  unlawful,  as  a  claim  for  usuri-  appropriation  most  favorable  to  the  cred- 

ous   interest,  he  cannot   apply  a  general  itor.     Livermore   v.    Claridge,   33  Maine, 

payment  by  the  debtor  to  the  illegal  do-  428.] 

mand,  although  the  debtor,  if  he  so  elects,  ^  i^irby  v.  D.  of  Marlborough,  2  M.  & 

may  thus  apply  it.     Rohan  v.   Hanson,  11  S.  18.     And  see  Brewer  v.  Knapp,  1  Pick; 

Cush.  44  ;  Bancroft  v.  Dumas,  12  Verm.  337  ;  Mitchell  r.  Dall,  4  G.  &  J.  361  ;  Plo- 

457;    Backman    v.   Wright,    I    Williams  mer  v.  Long,  1  Stark.  153;  Clark  v.  Bur- 

(Vt.)  187  ;   Caldwell  v.  Wcntworth,  14  N.  dett,  2  Hall,  N.  Y.  Rep.  185. 

Hamp.  437  ]  e  Marryatts  v.  White,  2  Stark.  101. 


PART  IV.]  ■  PAYMENT.  477 

does  not  prevent  the  ascription  of  a  general  payment  to  the  former 
demand,  where  the  debtor  himself  has  not  appropriated  it  at  the 
lime.i  So,  if  one  of  two  bills  is  void  for  want  of  a  stamp,  a  general 
payment  may  still  be  applied  to  it  by  the  creditor .^ 

§  536.  In  some  cases,  the  court,  in  the  exercise  of  its  discretion, 
and  for  the  sake  of  equal  justice,  will  apply  general  payments,  in 
a  ratable  proportion,  to  all  the  existing  debts.  Thus,  if  a  broker, 
having  sold  goods  of  several  principals  to  one  purchaser,  receives 
from  hira  a  general  payment  in  part,  after  which  the  purchaser  be- 
comes insolvent,  the  payment  shall  be  applied  in  proportion  to  each 
debt.3  So,  if  the  agent  blends  a  demand  due  to  his  principal  with 
one  due  from  the  same  debtor  to  himself,  and  receives  a  general 
payment  thereon  ;  ^  or  if  an  insolvent  assigns  all  his  property  for 
the  benefit  of  his  creditors,  and  a  dividend  is  paid  to  one  of  them, 
who  holds  divers  demands  against  the  insolvent ;  ^  or  if  several  de- 
mands, some  of  which  are  collaterally  secured,  are  included  in  one 
judgment,  and  the  execution  is  satisfied  in  part ;  ^  in  these  and  the 
like  cases  the  payment  will  be  ascribed  in  a  ratable  proportion  to 
each  debt. 

1  Mills  V.  Fowkes,  5  Bing.  N.  C.  455;  ^  gcott  v.  Ray,  18  Pick.  360;  Commer 

3  Jur.  406 ;  Williams  v.  Griffith,  5  M.  &  cial  Bank  v.  Cunningham,  24  Pick.  270. 

W.  300.     [See  ante,  §  531. J  «  Blackstone  Bank  v.  Hill,  10  Pick.  129 

■■2  Biggs  V.  Dwight,  I  M.  &  Rob.  308.  And  see  Perris  v.  Roberts,  1  Vern.  34 ;  1 

«  Favene  v.  Bennett,  11  East,  36.  Poth.  Obi.  by  Evans,  Part  3,  ch.  1,  art  7 

*  Barrett  v.  Lewis,  2  Pick.  123  ;  Cole  v.  §§  528  -  535 ;  Shaw  v.  Picton,  4  B.  &  C 

Trail.  9  Pick.  325.  715. 


178  LAW   OF  EVIDENCE.  [PART  IV. 


PRESCRIPTION. 

[•§  537.  Prescription,  a  title  acquired  by  possession,  had  during  the  time  and  in  the 
manner  fixed  by  law. 

538.  This  title  originally  founded  upon  uninterrupted  enjoyment  for  a  period 

beyond  the  memory  of  man. 

539.  Period  of  enjoyment  required  in  United  States  generally  twenty  years.    Weight 

of  authority  that  presumption  is  conclusive. 
539  a.  Enjoyment  to  be  adverse  must  be  such  as  to  afford  ground  for  an  action  by 
the  other  party.    Enjoyment  by  license  or  consent  affords  no  presumption 
of  grant. 

540.  Two  kinds  of  positive  prescription. 

541.  What  cannot  be  claimed  by  prescription. 

542.  Customary  rights  differ  from  prescriptive  in  being  local  usages. 

543.  What  Avill  sustain  plea  of  prescription. 

544.  Prescriptive  title  not  defeated  by  slight,  partial,  or  occasional  variations  in 

the  exercise  or  extent  of  the  right  claimed. 

545.  What  will  defeat  title  by  prescription. 

546.  Usage  not  long  enough  to  support  prescription,  coupled  with  other  circum- 

stances, may  support  plea  of  lost  grant.] 

§  537.  Prescription,  in  its  more  general  acceptation,  is  defined 
Lo  be  "  a  title,  acquired  by  possession,  had  during  the  time  and  in 
the  manner  fixed  bylaw."  After  the  lapse  of  the  requisite  period, 
the  law  adds  the  right  of  property  to  that  which  before  was  only 
possession. 1  The  subject  of  prescription  is  real  property  ;  but  the 
title  to  corporeal  hereditaments,  derived  from  exclusive  adverse 
possession,  being  regulated  by  the  statutes  of  limitation,  of  which 
we  have  already  treated  under  that  head,  the  title  by  prescription, 
in  its  strictest  sense,  is  applied  only  to  things  incorporeal,  such  as 
rents,  commons,  ways,  franchises,  and  all  species  of  easements  or 
liberties  without  profit,  which  one  man  may  be  entitled  to  enjoy  in 
tlie  soil  of  another,  without  obtaining  any  interest  in  the  land 
itself.2 

^  Gale  &  Whatley  on  Easements,  p.  86;  tions,  ch.  iii.  pp.  87-110.     See   also  Mr. 

Co.  Lit.  113  b.  Angell's  Treatise  on  Adverse  Enjoyment. 

'•^  See  3  Cruise's  Digest,  tit.  xxxi.  ch.  1  [Sec    McFarlin   v.   Essex    Company,    10 

(Grcenlcaf's  edition,  1856).     The  law  of  Cnsh.  304.     To  constitute   a  watercourse 

Prescriptions  is  stated  witli  great  clearness  from  one  tract  of  land  to  another,  there 

by  Mr.  Best,  in  his  Treatise  on  Presump-  must  be  something  more  than  a  mere  sur 


PART  IV.]  PRESCRIPTION.  479 

§  538.  This  prescriptive  title  to  things  incorporeal  was  original- 
ly founded  on  uninterrupted  enjoyment  for  a  period  of  indefinite 
antiquity,  or  beyond  the  memory  of  man,  and  is  termed  a  positive 
prescription.  When  writs  of  right  were  limited  to  a  fixed  period, 
it  was  thought  unreasonable  to  allow  a  longer  time  to  claims  by 
prescription ;  and  accordingly  prestiriptive  rights  were  held  inde- 
feasible, if  proved  to  have  existed  previous  to  the  first  day  of  the 
reign  of  King  Richard  I.,  that  being  the  earliest  limitation  of  writs 
of  right,  and  were  invalidated  if  shown  to  have  had  a  subsequent 
origin.  When  later  statutes  reduced  the  period  of  limitation  of 
real  actions  to  a  certain  number  of  years,  computed  back  from  the 
commencement  of  each  action,  it  was  to  have  been  expected,  that 
the  period  of  legal  memory  in  regard  to  prescriptions  would  have 
been  shortened  by  the  courts  of  law  in  like  manner,  upon  the  same 
reason  ;  but  it  was  not  done,  and  the  time  of  prescription  for  incor- 
poreal rights  remained  as  before.  This  unaccountable  omission 
has  occasioned  some  inconvenience  in  the  administration  of  justice, 
and  some  conflict  of  opinion  on  the  bench,  and  in  the  profession  at 
large.  The  inconvenience,  however,  has  been  greatly  obviated  in 
practice,  by  introducing  a  new  kind  of  title,  namely,  the  presump- 
tion of  a  grant,  made  and  lost  in  modern  times  ;  which  the  jury 
are  advised  or  directed  to  find,  upon  evidence  of  enjoyment  for 
sufficient  length  of  time.  But  whether  this  presumption  is  to  be 
regarded  as  a  rule  of  law,  to  be  administered  by  the  judges,  or 
merely  as  a  subject  fit  to  be  emphatically  recommended  to  the  jury, 
is  still  a  disputed  point  in  England,  though  now  reduced  to  little 
practical  importance,  especially  since  the  recent  statute  on  this 
subject.^ 

face  drainage  over  the  entire  face  of  the  been  enjoyed  by  express  consent  or  agree- 

tract  of  laud,  occasioned  by  unusual  fresh-  ment,  by  deed  or  in  writing.     By  §  2,  a 

ets  or  other  extraordinary  causes,  but  the  similar  effect  is  given  to  the  like  enjoyment 

size  of  the  stream  is   not  important,  nor  of  ways,  easements,  and  watercourses,  and 

need  the  flow  of  the   water  be  constant,  rights  for  the  period  of  twenty  3-ears,  unless 

Luther  v.  Winnissimmet  Co.,  9  Cush.  174;  defeated  in  some  legal  way  other  than  by 

Ashley  y.  Ashley,  6  Cush.  71.  J  showing   an  earlier  commencement;   and 

1  See   Gale  &  Whatley  on  Easements,  for  forty  years,  unless  by  consent  in  writ- 

pp.  89  -  97  ;    Pritchard  v.  Powell,  10  Jur.  ing,  as  in  the  preceding  section.     And  by 

154.     By  Stat.  2  &  3  W.  4,  c.  71,  §  1,  no  §  3,  the  enjoyment   of  lights   for   twenty 

prescription  for  any  right  in  land,  except  years  without  interruption  confers  an  abso- 

tithes,  rents,  and  services,  where  the  profit  lute  and  indefeasible  title,  unless  it  was  by 

shall  have  been  actually  taken  and  enjoyed  consent  in  writing,  as  in  the  other  cases, 

by  the  person  claiming  right  thereto,  with-  Thus  the  enjoyment  for  the  shorter  period, 

out  interruption,  for  thirty  years,  shall  be  in  the  first  two  cases,  is  made  a  prcesuinptio 

defeated  by  showing  an  earlier  commence-  juris  of  title,  excluding  only  one  method 

ment.     And  if  enjoyed  in  like  manner  for  of  defeating  it ;  and  the  enjoyment  for  the 

Bixty  years,  the  right  is  deemed  indefeas-  longer  period,  in  every  case,  is  made  a  prce- 

ible  and  absolute,  unless  shown  to  have  sutnptio  juris  et  de  jure,  against  a\i  opposing 


480 


LAW    OF   EVIDKXCE 


[part  IV. 


§  539.  In  the  United  States  grants  have  been  very  freely  pre- 
sumed, upon  proof  of  an  adverse,  exclusive,  and  uninterrupted  erir 
joyment  for  twenty  years;  it  being  the  policy  of  the  courts  of  law 
to  limit  the  presumption  to  periods  analogous  to  those  of  the  stat- 
utes of  limitation,  in  all  cases  where  the  statutes  do  not  apply ; 
but  whether  this  was  a  presumption  of  law  or  of  fact  was  for  a 
long  time  as  uncertain  here  as  in  England,  and  perhaps  may  not 
yet  be  definitely  settled  in  every  State.  But  by  the  weight  of 
authority,  as  well  as  the  preponderance  of  opinion,  it  may  be 
stated  as  the  general  rule  of  American  law,  that  such  an  enjoy- 
ment of  an  incorporeal  hereditament  affords  a  conclusive  presump- 
tion of  a  grant,  or  a  right,  as  the  case  may  be ;  which  is  to  be 
applied  as  a  prcesumptio  juris  et  de  jure,  wherever,  by  possibility,  a 
right   may  be   acquired  in  any  manner   known  to  the   law.^     In 


proof,  except  that  of  consent  in  -WTiting. 
See  Best  on  Presumptions,  §  98,  pp.  116  - 
129. 

1  Tyler  v.  Wilkinson,  7  Mason,  402,  per 
Story,  J.  And  see  ante.  Vol.  1,  §  17,  and 
cases  there  cited  ;  Sims  v.  Davis,  1  Cheves, 
2;  3  Kent,  Coram,  pp.  441,  442.  On  this 
subject,  Mr.  Justice  Wilde,  in  delivering 
the  opinion  of  the  court  in  Coolidge  v. 
JLicarncd,  8  Pick.  504,  remarked  as  follows : 
"  That  the  time  of  legal  memory,  accord- 
ing to  the  law  of  England,  extends  back  to 
the  remote  period  contended  for  by  the 
plaintiff's  counsel,  cannot  be  denied ;  but 
for  what  reason,  or  for  what  purpose,  such 
a  limitation  should  have  been  continued 
down  to  the  present  day,  we  are  unable  to 
ascertain.  Cruise  says,  '  that  it  seems 
somewhat  extraordinary,  that  tlie  date  of 
legal  prescription  should  continue  to  be 
reckoned  from  so  distant  a  period.'  And 
to  us  it  seems,  that  for  all  practical  pur- 
poses, it  might  as  well  be  reckoned  from 
the  time  of  the  creation.  The  limitation 
in  question  (if  it  can  now  be  called  a  limi- 
tation) was  first  established  soon  after  the 
Stat.  Wa-^tm.  2  (13  Edw.  1,  c.  39),  and 
was  founded  on  the  equitable  construction 
of  tliat  statute,  which  ])rovided  that  no 
writ  of  right  siiould  be  maintained  except 
on  a  seisin  from  the  time  of  Richard  I. 

"It  was  held  that  an  undisturbed  enjoy- 
ment of  an  easement  for  a  period  of  time 
sufficient  to  give  a  title  to  land  by  posses- 
sion, was  sufficient  also   to  give  a  title  to 
the  easement.     2  Roll.  Abr.  269  ;  2  Inst. 
238  ;  Rex  v.  Hudson,  2  Str.  909  ;  3  Stark. 
'  ■oji^vj^20.5.      Upon  this   principle,    the 
'  tii™ffl^%n;al   memory  was   first  limited, 
•an^fcipon    the   same  principle,  when  the 
limration  of  a  writ  of  rigiit  was  reduced 
by  the  statute  of  32  Hen.  8,  c.  2,  to  sixty 


years,  a  similar  reduction  should  have  been 
made  in  the  limitation  of  the  time  of  legal 
memory.  This  was  required,  not  only  by 
public  policy,  to  quiet  long-continued  pos- 
sessions, but  by  a  regard  to  consistency, 
as  it  would  have  been  only  following  up 
the  principle  upon  which  the  first  limita- 
tion was  founded. 

"  And  of  this  opinion  was  Rolle  (2  Roll. 
Abr.  269),  though  he  admits  that  at  his 
time  the  practice  was  otherwise.  Why 
the  opinion  of  this  eminent  judge,  founded 
as  it  was  on  reasoning  so  solid  and  satis- 
factory, was  not  adopted  by  the  courts, 
does  not  appear.  But  it  docs  appear,  that 
the  principle  on  which  his  opinion  was 
founded  was  respected,  and  carried  into 
operation  in  another  form.  For  although 
the  courts  continued  to  adhere  to  the  limi- 
tation before  adopted,  yet  the  long  enjoy- 
ment of  an  easement  was  held  to  be  a  suf- 
ficient reason,  not  only  to  authorize,  but 
to  require,  the  jury  to  presume  a  grant. 
And  it  has  long  been  settled,  that  tiie  un- 
disturbed enjoyment  of  an  incorporeal 
right  affecting  the  lands  of  another  for 
twenty  years,  the  possession  being  adverse 
and  unrebutted,  imposes  on  the  jury  the 
duty  to  presume  a  grant,  and  in  all  such 
cases  juries  are  so  instructed  by  the  court. 
Not,  however,  because  either  tiie  court  or 
jury  believe  the  presumed  grant  to  have 
been  actually  made,  but  because  jnililic  pol- 
icy and  convenience  require  that  long-con- 
tinued possession  should  not  be  disturbed. 

"  The  period  of  twenty  yeiu's  was  adopt- 
ed in  analogy  to  the  statute  of  limitations, 
by  which  an  adverse  possession  of  twenty 
years  was  a  bar  to  an  action  of  ejectment, 
and  giive  a  promissory  title  to  the  land. 
Thus  it  appears,  that  although  prescriptive 
rights  commencing  after  the  reij'n  of  Rich- 


PART  IV.] 


PRESCRIPTION. 


481 


order,  however,  that  the  enjoyment  of  an  easement  in  another's 
land  may  be  conclusive  of  the  right,  it  must  have  been  adverse^ 


ard  I.  are  not  sustained  in  England,  yet  a 
possession  of  twenty  years  only  is  sufficient 
to  warrant  the  presumption  of  a  prant ; 
■which  is  the  foundation  of  the  doctrine  of 
prescription.  In  the  one  case,  the  grant 
is  presumed  by  the  court,  or  rather  is  pre- 
sumed by  the  law,  and  in  the  other  case 
jt  is  presumed  by  the  jury,  under  the  direc- 
tion of  the  court.  The  presumption  in  the 
latter  case  is  in  theory,  it  is  true,  a  pre- 
sumption of  fact,  but  in  practice  and  for 
all  practical  purposes,  it  is  a  legal  pi'esump- 
tion,  as  it  depends  on  pure  legal  rules  ;  and 
as  Starkie  remarks,  '  It  seems  to  be  very 
difficult  to  say,  why  such  presumptions 
should  not  at  once  have  been  established 
as  mere  presumptions  of  law,  to  be  applied 
to  the  facts  by  the  courts,  without  the  aid 
of  a  jury.  That  course  would  certainly 
have  been  more  simple,  and  any  objection, 
as  to  the  want  of  authority,  would  apply 
with  equal  if  not  superior  force  to  the  es- 
tablishing such  presumptions  indirectly 
througli  the  medium  of  a  jury. 

"  But  however  this  may  be,  it  is  clear 
that,  when  the  law  became  settled  as  it 
now  is,  and  a  party  was  allowed  to  plead 
a  non-existing  grant,  and  the  jury  were 
bound  to  presume  it,  on  proof  of  twenty 
years'  possession,  he  would  hardly  be  in- 
duced to  set  ujb  a  prescriptive  right ;  and 
the  limitation  of  legal  memory  thus  became 
ii>.  most  cases  of  very  little  importance. 
And  this  is  probably  the  reason  why  the 
period  of  legal  memory,  as  it  was  limited 
soon  after  the  statute  of  Westm.  1,  has 
been  suffered  to  go  on  increasing  to  the 
present  time,  although  it  has  long  since 
ceased  to  be  of  any  practical  ntility,  and 
is  utterly  inconsistent  with  the  principle 
on  which  the  limitation  was  originally 
founded. 

"  The  question  then  is,  whether  the 
courts  in  tliis  country  were  not  at  liberty 
to  adopt  the  English  law  of  prescription, 
with  a  modification  of  the  unreasonable 
rule  adhered  to  by  the  English  courts  in 
regai'd  to  the  limitation  of  the  time  of  legal 
memory.  Certainly  the  law  without  the 
rule  of  "limitation  might  have  been  adopted, 
and  the  courts  here  had  competent  author- 
ity to  establish  a  new  rule  of  limitation 
suited  to  the  situation  of  the  country. 
They  had  the  same  authority  in  this  respect 
that  the  courts  in  England  had  to  establish 
the  English  rule  of  limitation.  This  rule 
could  not  be  adopted  here  without  a  modi- 
fication, and  it  was  modified  accordingly  ; 
and  in  conformity  with  the  principle  of  the 
English  rule  of  limitation.  This  cannot 
be  ascertained  with  certainty,  but  it  is  evi- 
VOL,  II.  31 


dent,  that  the  English  rule  could  not  have 
been   adopted,  and   it  is  to  be  presumed 
that  the  period  of  sixty   years  was  fixed 
upon  as  the  time  of  limitation,  in  analogy 
to   the   statute  of  32  Hen.  \^,  c.  2,  and  in 
conformity  with  the  opinion  of  Rolle.     At 
what  period  of  our  history  the  law  of  pi"e- 
scription  was  first  introduced  into  practice 
in  the  courts  of  Massachusetts  cannot  now 
be  determined,  but  certainly  it  was  before 
the  time  of  legal  memory,  as  we  under- 
stand the  limitation  of" it;"  and  innumera- 
ble pleas  of  prescriptive  rights  are  to  be 
found  in  the  records  of  our  courts.     So 
the  cases  reported  by  Dane  show  that  the 
doctrine  of  prescription  has  been  repeatedly 
recognized  and  sanctioned  by  this  court- 
3  Dane,  253,  c.  79,  art.  3,  §  19.     The  only    . 
question  has  been,  whether  our  time  of 
legal  memory  was  limited  to  sixty  years, 
or  whether  it  was  to  extend  to  a  period 
beyond  which  no  memory  or  record  goes 
as  "to  the  right  in  question.     Tlie  general 
opinion,  we  think,  has  been  in  favor  of  the 
limitation  of  sixty  years  ;  and  we  think  it 
decidedly  the  better  opinion.     This  seema 
to  us  a  reasonable  limitation,  and,  as  be- 
fore remarked,  it  is  founded  on  the  princi- 
ple of  the  English  rule  of  limitation,  which 
was  adopted  in  reference  to  the  liniitatiou 
of  the  writ  of  right  by  the  statute  of  Westm. 
1.     Whether  since  the  writ  of  right  haf 
been  limited  to  forty  years,  a  similar  limi- 
tation of  the  time  of  legal  memory  ought 
to  be  adopted,  is  a  question  not  raised  in 
this  case  and  upon  which  we  give  no  opin- 
ion."    8  Pick.  .'jOS  -  511 .     The  conclusive- 
ness of  the  presumption  was  again  asserted 
in  Sargent  v  Ballard,  9  Pick.  2.^1.     After- 
wards, the  point  of  time  being  before  the 
same  court,  it  was  adjudged,  that  the  ex- 
clusive uninterrupted  use  and  enjoyment 
for   forty   years,  of  an    incor])ore.il   right 
affecting  another's   land,  was  sufficient  to 
establish  a  title  by  prescription.     Melvin 
V.  Whiting,   10   Pick.    295.     And,    subse- 
quently, a  similar  enjoyment  for  twenty 
years  was  held  equally  effectual.     Bolivar 
Man.  Co.  v.  NeponsetManuf.  Co.,  16  Pick. 
241.     This  rule  is   now  expressly  recog- 
nized, in  several  of  the  States,  by  statutes. 
See  Rev.  Stat.  Massachusetts,  ch.  60,  §  27  ; 
Rev.   Stat.  Maine,  ch.   147,  §  14.     And  it 
seems  to  be  either  assumed  or  necessarily 
implied  in  the  legislation  of  other  States. 
See  JJ.mer's  Dig.  LL.  Neic  Jersei/,  pp.314, 
317,  tit.  Limitations,  §§  1,  16 ;  Den  v.  Me-' 
Cann,  Penningt.  331,  333;  1  Rev.  Stat. 
N.  Carolina,  ch.  64,  §  1,  pp.  371,  372  ;  Rev. 
Stat.  Delaware,  1839,  tit.  Limitations,  §  1,/ 
p.  396  ;  2  LL.  Kentucky,  p.  1125,  tit.  LiW 


482 


LAW   OF  EVIDENCE. 


[part  IV. 


that  is,  under  a  claim  of  title,  with  the  knowledge  and  acquies- 
cence of  the  owner  of  the  land,  and  uninterrupted ;  and  the  5wr- 
den  of  'proving  this  is  on  the  party  claiming  the  easement.  If  he 
leaves  it  doubtful,  whether  the  enjoyment  was  adverse,  known  to 
the  owner,  and  uninterrupted,  it  is  not  conclusive  in  his  favor.^ 
§  539  a.  It  seems,  that  to  constitute  an  adverse  enjoyment  of  an 
incorporeal  hereditament,  the  act  of  enjoyment  must  be  of  such  a 
character  as  to  afford  ground  for  an  action  by  the  other  party. 
It  must  be  either  a  dii*ect  invasion  of  his  vested  rights,  or  else  con- 
sequently injurious  to  their  free  exercise.  The  foundation  of 
prescriptive  title  is  the  presumed  grant  of  the  party  whose  rights 
are  adversely  affected  ;  but  where  it  appears  that  the  enjoyment 
has  existed  by  the  consent  or  license  of  such  party,  no  presump^ 
tion  of  grant  can  be  made.  Thus,  in  the  case  of  lights,  if  the 
building  in  which  they  are  made  is  erected  on  the  party's  own 
land,  and  no  building  stands  on  the  land  of  the  adjoining  proprie- 
tor, it  has  been  held  that,  against  the  latter,  no  right  is  acquired 
by  lapse  of  time.^ 


itations,  §  2  (Morehead  &  Brown's  edit.) ; 
Morgan  v.  Bantu,  1  Bibb.  .582 ;  Simpson 
V.  Hawlvins,  1  Dana,  306 ;  Clay's  Dig. 
LL.  Alabama,  p.  329,  §  93  ;  Kev.  Stat. 
Missouri,  p.  392,  tit.  Limitations,  art.  1, 
§  1  ;  2  Rev.  Stat.  New  York,  p.  293,  §§  5, 
7  ;  3  Cruise's  Dig.  tit.  31,  eh.  1,  §  21,  note 
(Greenleaf  8  ed.).  See  also  Shaw  v.  Craw- 
ford, 10  Johns.  236  ;  Johns  v.  Stevens,  3 
Verm.  316.  The  case  of  Boiling  v.  The 
Mayor,  &c.  of  Petersburg,  3  Rand.  563, 
577,  wliich  has  been  cited  to  the  contrary, 
was  a  writ  of  right,  respecting  a  corporeal 
hereditament,  and  turned  upon  the  statute 
of  limitations.  [*  Proof  of  an  adverse  and 
uninterrupted  use  of  a  way  for  twenty  years, 
with  the  knowledge  and  acquiescence  of 
the  owner  of  the  land,  is  sufficient  to  estab- 
lish an  encumbrance  upon  hind  without 
proof  of  an  express  claim  of  the  right  by 
the  persons  using  the  way,  or  of  an  express 
admission  of  the  right  by  the  owner  of  the 
land.  Blake  v.  Everett,  1  Allen,  248. 
Wliere  no  contract  is  shown,  and  the  use 
came  ^.o  the  knowledge  of  the  adverse  par- 
ty, 0."  was  so  open  and  notorious  that  such 
knowledge  would  be  presumed,  the  use 
will  be  presumed  to  have  been  under  a 
claim  of  right,  unless  the  contrary  is 
shown.     Arbuckle  v.  Ward,  29  Vt.  43.1 

1  Sargent  v.  Ballard,  9  Pick.  251  ;  Da- 
vies  V.  Stevens,  7  C.  &  P.  570 ;  Jarvis  v. 
Dean,  3  Bing.  447. 

2  Pierre  v.  Fernald,  13  Shepl.  436. 
Shejjley,  J.,  in  delivering   the  opinion  of 


the  court  in  this  case,  said :  "  Nothing  in 
the  law  can  l)e  more  certain  than  one's 
right  to  occupy  and  use  his  own  land,  as 
he  pleases,  if  he  does  not  thereby  injure 
others.  He  may  build  upon  it,  or  occupy 
it  as  a  garden,  grass-plat,  or  passage-way, 
without  any  loss  or  diminution  of  his 
rights.  No  other  per.son  can  acquire  any 
right  or  interest  in  it,  merely  on  account 
of  the  manner  in  which  it  has  been  occu- 
pied. When  one  builds  upon  his  own 
land  immediately  adjoining  the  land  of 
another  person,  and  puts  out  windows 
overlooking  that  neighbor's  lands,  he  does 
no  more  than  exercise  a  legal  right.  This 
is  admitted.  Cross  v.  Lewis,  2  B.  &  C. 
686.  By  the  exercise  of  a  legal  right  he 
can  make  no  encroachment  upon  the  rights 
of  his  neighbor,  and  cannot  thereb}'  impose 
any  servitude  or  acquire  any  easement  by 
the  exercise  of  such  a  right  for  any  length 
of  time.  He  does  no  injury  to  his  neigh- 
bor by  the  enjoyment  of  the  flow  of  light 
and  air,  and  does  not  therefore  claim  or  ex- 
ercise any  right  adversely  to  the  rights  of 
his  neighbor.  Nor  is  there  anything  of 
similitude  between  tlie  exercise  of  such  a 
right  and  the  exerci.se  of  rights  claimed 
adversely.  It  is  admitted  that  the  defend- 
ant cannot  obtain  redress  by  any  legal 
process.  In  other  words,  that  his  rights 
have  not  been  encroached  upon  ;  and  that 
he  has  no  cause  of  complaint.  And  yet, 
while  thus  situated  for  more  than  twenty 
years,  he  loses  his  right  to  the  free  use  of 


PAST  IV.]  PRESCRIPTION.  483 

§  540.  There  are  two  kinds  of  positive  prescription :  the  one 
being  a  personal  right,  exercised  by  the  party  and  his  ancestors, 
or  by  a  body  politic  and  its  predecessors ;  and  the  other  being  a 
right  attached  to  an  hereditament  held  in  fee-simple,  and  exercisa- 
ble only  by  those  who  are  seised  of  that  estate  ;  and  this  is  termed 
a  prescription  in  a  que  estate} 

§  541.  Nothing  can  be  claimed  by  prescription  which  owes  its 
origin  to,  and  can  only  be  had  by,  matter  of  record;  but  lapse  of 
time  accompanied  by  acts  done,  or  other  circumstances,  may  war- 
rant the  jury  in  presuming  a  grant  or  title  by  record.^  Nor  can 
anything  be  claimed  by  prescription,  unless  it  might  have  been 
created  by  grant ;  nor  anything  which  the  law  itself  gives  of  com- 
mon right.  Nor  can  anything  be  prescribed  for  in  a  que  estate,  un 
less  it  is  appendant  or  appurtenant  to  land,  and  lies  in  grant.^ 

§  542.  Customary  rights  differ  from  prescriptive  rights  only  in 
this,  that  the  former  are  local  usages,  belonging  to  all  the  inliab- 
itants  of  a  particular  place  or  district ;  whereas  the  latter  are 
rights  belonging  to  individuals,  wherever  they  may  reside.* 

§  543.  From  this  view  of  the  present  state  of  the  law  on  this  sub- 
ject, it  appears  that  the  plea  of  prescription  will  be  maintained  by 
any  competent  evidence  of  an  uninterrupted,  exclusive  enjoyment 
of  the  subject  prescribed  for  during  the  period  of  twenty  years, 
with  claim  of  title,  and  with  the  actual  or  presumed  knowledge  of 
those  adversely  interested.^  The  time  of  enjoyment  by  a  former 
owner,  whose  title  has  escheated  to  the  State  by  forfeiture,  cannot 
be  added  to  the  time  of  enjoyment  by  the  grantee  of  the  State,  to 
make  up  the  twenty  years  ;   but  the  times  of  enjoyment  by  those 

his  land,  because  he  did  not  prevent  his  claim  was  either  made  or  enjoyed."     And 

neighbor  from  enjoying  that  which  occa-  see  Parker  v.  Foote,  19  Wend.  309 ;  Eay 

Bioned  him  no  injury  and  afforded  him  no  v.  Lines,  10  Ala.  R.  6.3. 

just  cause  of  complaint.     The  result  of  the  ^  3  Cruise's  Dig.  tit.  xxxi.  ch.  1,  §§  8,  9 

doctrine  is,  that  tiie  owner  of  land  not  cov-  (Greenleaf's  edit.  1856). 

ered  by  buildings,  but  used  for  any  other  ^  3  Cruise's  Dig.  tit.  xxxi.  ch.  1,  §  10 

purpose,  may  be  deprived  of  the  right  to  (Greenleaf's  edit.  1856)  ;  Farrar  v.  Mer- 

build   upon  it  by  the  lawful  acts   of  the  rill,    1    Greenl.    17  ;   Battles  v.  Holley,  6 

owner  of  the  adjoining  land  performed  up-  Greenl.  145  ;  ante,  Vol.  1,  §  46  ;  Best  on 

on  his  own  land  and  continued  for  twenty  Presumptions,  §  111. 

years.  ^  3  Cruise's  l)ig.  tit.  xxxi.  ch.  1,  §§  11, 

"It   may  be  safely   affirmed,   that  the  17,  18,  19  (Greenleaf's  edit.  1856). 

common  law  originally  contained  no  such  *  Id.    §    7  ;    Best    on    Presumptions, 

principles.     The  doctrine  as  stated  in  the  §  79. 

more  recent  decisions  appears  to  have  arisen  ^  [*  Where  an  uninterrupted  user  for 

out  of  the  misapplication  in  England  of  twenty-one  years  is  proved,  the  jury  will 

the  principle  by  which   rights   and  ease-  be  justified  in  presuming  it  adverse,  unless 

ments  are  acquired  hy  the  adverse  claim  that  presumption  be  rebutted  by  proof  of 

and  enjoyment  of  them  for  twenty  years,  license  or  agreement.     Steffy  v.  Carpenter, 

lo  a  case  in  which  no  adverse  or  injurious  37  Penn,  St.  41.] 


484  LAW   OF   EVIDENCE.  [PART  IV. 

in  privity  with  the  claimant,  as  in  the  relation  of  heir  and  ances< 
tor,  or  grantor  and  grantee,  may  be  thus  joined.^ 

§  544.  If  the  evidence  of  the  claim  extends  over  the  requisite 
period  of  time,  the  prescriptive  title  will  not  be  defeated  by  proof 
of  slight,  partial,  or  occasional  variations  in  the  exercise  or  extent 
of  the  right  claimed.  Thus,  if  a  watercourse  is  prescribed  for  to 
a  fulling-mill,  but  the  party  has  converted  it  into  a  grist-mill ;  ^ 
or,  if  the  subject  of  prescription  be  a  towing-path  along  the  banks 
of  a  navigable  river,  and  it  has  been  converted  by  statute  into  a 
floating  harbor,^  the  right  is  not  thereby  lost ;  for,  in  the  former 
case,  the  substance  of  the  right  is  the  mill,  and  not  the  kind  of 
mill  to  which  the  same  propelling  power  was  applied  ;  and  in  the 
latter  case,  the  use  made  by  the  public  was  essentially  the  same  as 
before,  namely,  for  facility  of  navigation.  So,  proof  of  the  exer- 
cise of  the  right  whenever  the  party  had  occasion  to  do  so,  as,  for 
example,  the  right  to  take  clay  to  make  bricks,  is  sufficient,  with- 
out showing  that  it  was  in  fact  exercised  at  all  times  of  the  year, 
though  it  is  so  alleged  in  the  plea.*  Thus,  also,  the  plea  will  be 
supported  by  proof  of  a  right,  larger  than  the  right  claimed,  if  it 
be  of  a  nature  to  include  it.^  And  if  the  prescription  is  for  a 
common  appurtenant  to  a  house  and  twenty  acres,  it  will  be  sup- 
ported by  proof  of  a  right  appurtenant  to  a  house  and  eighteen 
acres.^  But  the  prescription,  being  an  entire  thing,  must  be 
proved  substantially  as  laid  ;  '^  and  therefore  a  variance  in  any  part, 
material  or  essentially  descriptive,  will  be  fatal.  Thus,  if  the 
prescription  is  for  common  for  commonable  cattle,  and  tlie  evi- 
dence is  of  common  for  only  a  particular  species  of  commonable 

1  Sargent  v.  Ballard,  9  Pick.  251.     [An  -  Lutterel's   case,  4   Co.  86.     And  see 

adverse  occupation  of  a  fishery  by  A  for  a  Blanchard  v.  Baker,  8  Greenl.  253, 

number  of  years,  but  afterwards  abandoned,  ^  Rex     v.     Tippett,     3     B.     &     Aid. 

cannot  be  added  to  a  subsequent  occupa-  193  ;    Codling   v.   Johnson,    9   B.    &    C. 

tion  by  B,  to  give  B  a  prescriptive  right,  933. 

although  A,  after  such  abandonment,  re-  *  Clayton  v.  Corby,  8  Jur.  212;  2  Ad. 

leased  all   his  right  in  the  fishery  to  B.  &  El.  813,  N.  S. 

Nor  will  the  occupation  thereof  by  B  for  ^  Bailey  v.   Applcyard,    8   Ad.    &    El. 

several  years,  while  in  the  employment  of  167;  Bailiffs  of  Tcwksbury  v.  Bicknell,  1 

A,   give    B    any   rights    by   prescription  Taunt.  142;  Welcome  v.  Upton,  6  M.  & 

against  C,  although  A  claims  adversely  to  W.  540,  per  Aldcrson,  B. ;  Buskwood  v. 

C.     McFarlin  v.  Essex  Company,  10  Cush.  Pond,  Cro.  El.  722. 

304.      See   also    Sawver  v.    Kendall,   lb.  *^  Gregory  v.  Hill,  Cro.  El.  531 ;  Rick- 

241  ;  Kilbuni  v.  Adams,  7  Met.  33.    Twcn-  ets  v.  Salwey,  2  B.  &  Aid.  360.. 

ty  years' user  will  not  establish  a  right  by  "^  See  ante,   Vol.  1,  §§  63,  67,71,  72; 

prescription  unless  the  owner  of  the  sub-  Paddock  v.  Fon-ester,  1  Dowl.  N.  C.  527  ; 

ject  prescribed  for  is  capal)le  of  giving  by  Drewell   v.    Towlcr,    3   B.    &   Ad.    735  ; 

express  grant  such  a  right  as  is  claimed  |Peardon  v.  Underbill,  2  Eng.  Law  &  Eq. 

by  prescription.     Rochdale  Canal  v.  Rad-  228.] 
diflFe,  12  Eng.  Law  &  Eq.  409.J 


PAKT  IV.J  PRESCRIPTION.  485 

cattle ;  ^  or,  if  the  prescription  pleaded  is  general  and  absolute, 
but  the  proof  is  of  a  prescriptive  right  coupled  with  a  condition  ;  ^ 
or  subject  to  exceptions  ;  ^  or  if  the  right  claimed  is  of  common  in 
a  certain  close,  and  it  appears  that  the  claimant  has  released  his 
title  in  part  of  the  land ;  *  in  these,  and  in  the  like  cases,  the  plea 
is  not  supported. 

§  5-15.  The  claim  of  a  prescriptive  right  may  be  defeated  by  evi- 
dence, showing  that  it  has  been  interrupted,  within  the  legal  pe- 
riod ;  but  this  must  be  an  interruption  of  the  right,  and  not  sim- 
ply an  interruption  of  the  use  or  possession.^  Thus,  if  estovers 
for  a  house  be  by  prescription,  and  the  house  be  pulled  down  and 
rebuilt,  the  right  is  not  lost.^  Nor  will  the  right  be  destroyed  by 
a  tortious  interruption,  nor  by  a  discontinuance  by  the  lease  of  a 
terre-tenant.'''  It  may  also  be  defeated  by  proof  of  unity  of  title  to 
the  easement  and  to  the  land  to  which  it  was  attached,  where  both 
titles  are  of  the  same  nature  and  degree ;  or,  by  evidence  of  the 
final  destruction  of  the  subject  to  which  the  right  was  annexed ;  ^ 
or,  by  showing  that  its  commencement  and  continuance  were  by 
the  agreement  and  consent  of  the  adverse  party,  or  by  his  express 
grant,  within  the  legal  period.  But  proof  of  an  older  grant  will 
not  defeat  the  claim,  if  it  appear  to  be  in  confirmation  of  a  pdor 
right.^  And  if  the  exercise  of  the  right  claimed  was  by  consent 
of  one  who  had  only  a  temporary  interest  in  the  land,  as,  for  exam- 
ple, a  tenant  for  life,  his  neglig-ence  in  not  resisting  the  claim  will 
not  be  allowed  to  prejudice  the  owner  of  the  inheritance.^*^  The 
acquiescence  of  the  owner,  however,  may  be  inferred  from  circum- 

1  Bull.  N.  P.  59.     And  see  Rex  v.  Her-  he  does  not,  by  such  suspension,  lose  his 

mitag^e,  Carth.  241.  right,  unless  it  appeal*  that  he  intended  to 

^  Gray's  case,  5  Co.  78  h ;  Lovelace  v.  abandon  and  not  resume  the  exercise  of 

Reignolds,  Cro.  El.  .563 ;  Paddock  v.  For-  such  trade.     Dana  v.  Valentine,  5  Met.  8, 

rester,  3  M.  &  G.  903.  13.     See  Pollard  y.  Barnes,  2  Cush.  191.] 

3  Griffin  v.  Blandford,  Cowp.  62.  6  4  Co.  87  ;  Cowpery.  Andrews,  Hob.  39. 

*  Rotherham    v.    Green,  Cro.  El.  593.  '  2  Inst.  653,  654. 

[So  if  the  prescription  is  for  the  right  to  *  Co.  Lit.    114  h;  3  Cruise's   Dig.  tit. 

empty  a  drain  upon  another's  land,  if  dur-  xxxi.  ch.  1,  §§  35,  36  (Greenl.  ed.  1856) ; 

ing  tlie  twenty  years  the  drain  has  been  6  Com.  Dig.  83,  tit.  Prescription,  G  , 

enlarged,  deepened,  or  varied  in  its  course  Morris  v.  Edgington,  3  Taunt.  24.    • 

and  termination,  the  claim  cannot  be  sup-  ^  Addington   v.  Clode,  2  W.  Bl.  989 , 

ported.     Cotton  v.  Pocasset  Manuf.  Co.  13  Biddulph  v.  Ather,  2  Wils.  23 ;  Best  on 

Met.  429,  433.]  Presumptions,  §  87. 

s  Co.    Lit.    114  6;  2   Inst    653,    654;  ^  Bi-^dbury  d.  Grinselh  2  Saund.  175rf, 

Canham  y.  Fisk,  2  C.  &  J.  126,  per  Bayley  note  by  Williams;  Daniel  v.   North,    11 

B. ;  Carr  v.  Foster,  3  Ad.  &  El.  581,  N.  S.  East,  372  ;  Barker  v.  Richardson,  4  B.  & 

[Where  a  party   exercises    an    offensive  Aid.  579  ;  Runcorn  v.  Doe,  5  B.  &  C.  696  ; 

trade  in   the  same  place   for  more  than  Wood  v.  Veal,  5  B.  &  Aid.  454.     See  also 

twenty  years,'with  no  molestation  or  inter-  Gale  &  Whatley  on  Easements,  pp.  108- 

ruption,  except  a  suspension  thereof  for  117.     So  if  it  was    by  mutual    mistake. 

two  years  before  the  twenty  years  elapse,  Campbell  v.  Wilson.  3  East,  294. 


i86  LAW   OF  EVIDENCE.  [PART  IV 

stances  ;  ^  and  where  the  tune  has  once  begun  to  run  against  him, 
the  interposition  of  a  particular  estate  does  not  stop  it.'^ 

§  546.  It  is  hardly  necessary  to  add,  that,  though  the  usage 
proved  may  not  be  sufficiently  long  to  support  the  claim  of  a 
right  by  prescription,  yet,  coupled  with  other  circumstances,  it 
may  be  sufficient  to  support  the  plea  of  title  by  a  lost  grant,  which 
the  jury  will  be  at  liberty,  and  sometimes  be  advised,  to  find  ac- 
cordingly.2 

1  Gray  v.  Bond,  2  B.  &  B.  667.  Vol.  1,  §§  17,  45,  and  cases  there  cited  ; 

"  Cross  V.  Lewis,  2  B.  &  C.  686  ;  Best  Best  on  Tresumptions,  §§  86  -  90  ;  Gale  & 

on  Presumptions,  §  89.  Whatley  on  Easements,  pp.  93  -  95. 
•  Bealev  v.  Shaw,  6   East,   208;  ante. 


PART  IV.]  BEAL  ACTIONS.  487 


REAL    ACTIONS. 

[•  %  547.  Statute  provisions  in  reference  to  real  actions. 

548.  Statute  remedies  to  recover  mesne  profits. 

549.  Remedy  of  occupant  for  lasting  improvements  made  by  Mm. 

550.  Different  remedies  in  the  different  States. 

551.  Various  legislation  in  reference  to  the  character  of  the  occupants  entitled  to 

compensation  for  improvements. 

552.  General  rules  only  of  common  law  stated  under  this  head. 

553.  Plaintiff  must  recover  on  the  strength  of  his  own  title.    Title  proved  as  in 

ejectment. 

554.  Title  by  disseisin  sufficient  to  maintain  action,  if  defendant  cannot  show  a 

better. 

555.  Possession  pnma/a«e  evidence  of  seisin. 

556.  Plea  of  nul  disseisin  puts  in  issue  legal  title. 

557.  Acts  constituting  a  disseisin. 

558.  Evidence  of  disseisin,  how  rebutted. 

559.  Compensation  for  lasting  improvements  computed  according  to  present  In- 

creased value  of  premises.] 

§  547.  The  principal  rules  of  evidence,  applicable  to  actions  for 
the  recovery  of  lands  and  tenements,  have  already  been  considered, 
under  the  title  of  Ejectment ;  this  being  the  form  of  remedy  pur- 
sued in  most  of  the  United  States.  But  in  several  of  the  States, 
this  remedy  has  been  essentially  modified,  as  in  South  Carolina, 
where  its  fictions  are  abolished,  and  an  action  of  "  trespass  to  try 
titles  "  is  given  by  statute  ;  and  in  Alabama,  where  a  similar  ac- 
tion, or  a  writ  of  ejectment,  is  given  at  the  election  of  the  party. 
In  other  States,  namely,  in  G-eorgia,  Iowa,  Texas,  California,  and 
Louisiana,  the  remedy  in  this,  as  in  all  other  civil  cases,  is  by 
petition  or  complaint,  in  which  the  entire  case  of  the  plaintiff  is 
'  fully  and  distinctly  stated,  and  is  answered  by  the  defendant,  much 
in  the  manner  of  proceedings  in  equity.  In  others,  as  in  Maine, 
New  Hampshire,  Connecticut,  and  Illinois,  the  forms  of  action  known 
to  the  common  law  are  all  recognized,  but  the  remedies  in  most 
frequent  use  are  the  writ  of  right,  the  writ  of  dower  unde  nihil  ha- 
het,  the  writ  offormedon,  in  the  very  few  cases  of  entailments  which 
now  occur,  and  especially  a  writ,  properly  termed  a  writ  of  entry 


488  LAW  OF  EVIDENCE.  [PART  IV, 

upon  disseisin.  This  last  is  now  almost  the  only  remedy  resorted 
to,  except  for  dower,  since  the  limitation  of  all  real  actions  and 
rights  of  entry,  in  all  the  States  last  mentioned,  except  Connecticut^ 
as  well  as  in  most  others,  is  now  reduced  to  one  uniform  period  of 
twenty  years.  In  Connecticut  the  limitation  is  fifteen  years,  and  in 
one  or  two  other  States  the  period  is  still  shorter.^ 

§  548.  There  is  diversity  in  the  laws  of  the  several  States  on  an- 
other point,  namely,  the  remedy  for  mesne  profits.  In  some  States, 
this  remedy  is  by  an  action  of  trespass,  as  at  common  law.  In 
others,  as  in  Massachusetts^  Maine,  and  Illinois,  and,  to  a  limited 
extent,  in  Vermont,  the  damages  for  mesne  profits  are  assessed  by 
the  jury,  in  the  trial  of  the  writ  of  entry,  the  real  action  being  thus 
changed  by  statute  into  a  mixed  action.  In  Peyinsylvania,  North 
Carolina,  South  Carolina,  Teniiessee,  Alabama,  Wisconsin,  and  Mis- 
souri, they  are  assessed,  with  various  restrictions,  by  the  jury,  in 
the  trial  of  the  writ  of  ejectment.  In  Ohio  and  Alahayna,  where 
the  value  of  his  lasting  improvements  is  claimed  by  the  defendant, 
and  the  value  of  the  land,  exclusive  of  the  improvements,  is  also 
assessed  at  the  request  of  the  plaintiff,  the  claim  for  mesne  profits 
is  merged  and  barred,  by  statute,  in  these  proceedings. 
'  §  549.  The  proceedings  last  mentioned  relate  to  another  feature, 
peculiar  in  the  law  of  real  remedies  of  some  of  the  United  States, 
but  unknown  in  others,  namely,  the  right  of  the  occupant  of  land 
to  recover  against  the  true  owner,  on  eviction  by  him,  the  value  of 
the  lasting  improvements,  popularly  termed  betterments,  which,  in 
good  faith,  he  has  made  upon  the  land.  This  right,  to  a  certain 
extent,  is  a  familiar  doctrine  in  courts  of  equity,  and  it  is  freely 
administered  whenever  the  owner,  after  recovery  of  the  land,  re- 
sorts to  a  bill  in  equity  against  the  late  occupant,  for  an  account 
of  the  rent  and  profits  ;  but  whether  those  courts  would  sustain  a 
bill  originally  brought  by  the  occupant  for  the  value  of  his  improve- 
ments was,  until  of  late,  wholly  an  open  question,  but  is  now,  in 
one  class  of  cases,  settled  in  favor  of  the  remedy .^     At  common 

_  1  See  3  Cruise's  Dig.  (Greenleaf's  edi-  debts;  but  the  title  being  defective, by  rea- 
tion,  1856),  sub  fine,  for  a  synopsis  of  the  son  of  illegality  in  the  administrator's  pro- 
Statutes  of  Limitation  of  Ileal  Actions  in  ceedings,  the  defendant,  who  was  the 
the  several  States.  devisee  under  a  foreign  will,  had  recovered 
2  See  2  Kent,  Comm.  pp.  334-338;  the  land  from  the  present  plaintiff  in  aa 
Bright  V.  Boyd,  1  Story,  R.  478.  In  this  action  at  law.  The  present  plaintiff,  not 
ca.«e,  which  was  a  bill  in  equity,  the  plain-  having  had  possession  of  the  land  for  a  suffi- 
tiff  had  purchased  the  premises  in  question  cient  length  of  time  to  enable  him  to  claim 
at  a  sale,  made  by  the  administrator  of  tlie  the  value  of  liis  lasting  improvements  under 
defendant's  ancestor,  for  payment  of  his  the  statute  of  Maine,  in  the  action  at  law. 


1  ART  IV.] 


REAL  ACTIONS 


489 


law,  it  i&'  well  known  that  no  such  claim  could  be  maintained ;  but 
Ihe  situation  of  the  United  States,  as  a  new  country  in  the  course 


MOW  filed  this  bill  for  that  and  some  other 
mrposes,  in  the  Circuit  Court  of  the  United 
States.  The  principal  question  was  dis- 
;ussed  by  Mr.  Justice  Story,  in  the  foUow- 
ng  terms  :  "  The  other  question,  as  to  the 
right  of  the  purchaser,  bona  Jide  and  for 
1  valuable  consideration,  to  compensation 
br  permanent  improvements  made  upon 
the  estate,  which  have  greatly  enhanced 
its  value,  under  a  title  which  turns  out 
defective,  he  having  no  notice  of  the  defect, 
is  one  upon  which,  looking  to  the  authori- 
ties, I  should  be  inclined  to  pause.  Upon 
the  general  principles  of  courts  of  equity, 
acting  ex  cequo  et  bono,  I  own  that  there 
does  not  seem  to  me  any  just  ground  to 
doubt  that  compensation,  under  such  cir- 
cumstances, ought  to  be  allowed  to  the 
full  amount  of  the  enhanced  value,  upon 
the  maxim  of  tlie  common  law,  Nemo  debet 
locupletari  ex  alterius  incommodo ;  or,  as  it  is 
6till  more  exactly  expressed  in  the  Digest, 
Jure  naturce  ceqwun  est,  neminem  cum  alterius 
detrimenio  et  injuria  fieri  locupletiorem.^  I 
am  aware,  that  the  doctrine  has  not  as  yet 
been  carried  to  such  an  extent  in  our 
courts  of  equity.  In  cases  where  the  true 
owner  of  an  estate,  after  a  recovery  thereof 
at  law,  from  a  bona  fide  possessor  for  a 
valuable  consideration  witliout  notice,  seeks 
an  account  in  equity,  as  plaintiflF,  against 
such  possessor,  for  the  rents  and  profits, 
it  is  tlie  constant  habit  of  courts  of  equity 
to  allow  such  possessor  (as  defendant) 
to  deduct  therefrom  the  full  amount  of 
all  the  meliorations  and  improvements 
which  he  has  beneficially  made  upon  the 
estate ;  and  thus  to  recoup  them  from  the 
rents  and  profits.-  So,  if  the  true  o^vncr 
of  an  estate  holds  only  an  equitable  title 
thereto,  and  seeks  the  aid  of  a  court  of 
equity  to  enforce  that  title,  tlie  court  will 
administer  that  aid  only  upon  the  terms 
of  making  compensation  to  such  bona  fide 
possessor  for  the  amount  of  his  meliora- 
tions and  improvements  of  the  estate,  bene- 
ficial to  the  true  owner. ^  In  each  of  these 
cases,  the  court  acts  upon  an  old  and  es- 
tablished maxim  in  its  jurisprudence,  that 
he  who  seeks  equity  must  do  equity.*  But 
it  has  been  supposed  that  courts  of  equity 
do  not  and  ought  not  to  go  further,  and  to 
grant  active  relief  in  favor  of  such  a  bona 
fide  possessor,  making  permanent  meliora- 
tions and  improvements,  by  sustaining  a 
bill,  brought  by  him  therefor,  against  the 

1  Dig.  lib.  50,  tit.  17,  1.  206. 

2  2  Story  on  Eq.  Jurisp.  §  799  a,  §  799 
6,  §§  1237,  1238,  1239;  Green  ».  Biddle, 
R  Wheat,  77,  78,  79,  80,  81. 


true  owner,  after  he  has  recovered  the 
premises  at  law.  I  find  that  Mr.  Chan- 
cellor Walworth,  in  Putnam  v.  Ritchie,  6 
Paige,  390,  403,  404,  405,  entertained  this 
opinion,  admitting  at  the  same  time  that 
he  could  find  no  case  in  England  or  Amer- 
ica where  the  point  had  been  expressed  or 
decided  either  way.  Now,  if  there  be  no 
authority  against  the  doctrine,  I  confess 
that  I  should  be  most  reluctant  to  be  the 
first  judge  to  lead  to  such  a  decision.  It 
appears  to  me,  speaking  with  all  deference 
to  other  opinions,  that  the  denial  of  all  com- 
pensation to  such  a  bona  fide  purchaser,  in 
such  a  case,  where  he  has  manifestly  added 
to  the  permanent  value  of  an  estate  by  his 
meUorations  and  improvements,  without 
the  slightest  suspicion  of  any  infirmity  in 
his  own  title,  is  contrary  to  the  first  princi- 
ples of  equity.  Take  the  case  of  a  vacant 
lot  in  a  city,  where  a  bona  fide  purchaser 
builds  a  house  thereon,  enhancing  the  val- 
ue of  the  estate  to  ten  times  the  original 
value  of  the  land,  under  a  title  apparently 
perfect  and  complete ;  is  it  reasonable  or 
just,  that  in  such  a  case  the  true  owner 
should  recover  and  possess  the  whole,  with- 
out any  compensation  whatever  to  the 
bona  fide  purchaser  1  To  me  it  seems 
manifestly  unjust  and  inequitable  thus  to 
appropriate  to  one  man  the  property  and 
money  of  another,  who  is  in  no  default. 
The  argument,  I  am  aware,  is,  that  the 
moment  the  house  is  built  it  belongs  to  the 
owner  of  the  land  by  mere  operation  of 
law ;  and  that  he  may  certainly  possess 
and  enjoy  his  own.  But  this  is  merely 
stating  the  technical  rule  of  law,  by  which 
the  true  owner  seeks  to  hold  wliat  in  a 
just  sense  he  never  had  the  slightest  title 
to,  that  is,  the  house.  It  is  not  answering 
the  objection  ;  but  merely  and  dryly  stat- 
ing that  the  law  so  holds.  But  then,  ad- 
mitting this  to  be  so,  does  it  not  furnish  a 
strong  ground  why  equity  should  inter- 
pose, and  grant  relief? 

"  I  have  ventured  to  suggest,  that  the 
claim  of  the  bona  fide  purchaser,  under 
such  circumstances,  is  founded  in  equity. 
I  think  it  founded  in  the  highest  equity; 
and  in  this  view  of  the  matter,  I  am  sup- 
ported by  the  positive  dictates  of  the  Ro- 
man law.  The  passage  already  cited  shows 
it  to  be  founded  in  the  clearest  natural 
equity  :  Jure  naturce  cequum  est.  And  the 
Roman  law   treats  the  claim  of  the  true 

3  See  also  2  Srorv,  Eq.  Jurisp.  §  799  b, 
and  note  ;  IcL  §§  1237,  1238. 
*  Ibid. 


190 


LAW   OF  EVIDENCE 


fPART  IV. 


of  rapid  and   even  tumultuous  occupation,  having  given  rise  to 
great  uncertainties  in  the  titles  to  land,  the  rule  of  the  common 


owner,  without  making  any  compensation 
under  such  circumstances,  as  a  case  of 
fraud  or  ill  faith.  Cerie  (say  the  Insti- 
tutes) illud  constat;  si  in  possessione  con- 
stlttito  adijicatore,  soli  Domimts  petal  domum 
suam  esse,  me  solvat  pretiuin  materice  et  mer- 
cedes  fahiorwn  ;  posse  eum  per  exccptioneni 
doli  mali  repef/i ;  utique  si  bonce  fidei  posses- 
sor, qui  cedijicnvit.  Nam  scienti,  alieniim 
solum  esse,  potest  ohjici  culpa,  quod  (edlfica- 
verit  tmere  in  eo  solo,  quod  intel/i(jel>at  alienum 
esse.^  It  is  a  grave  mistake,  sometimes 
made,  that  the  Roman  law  merely  confined 
its  equity  or  remedial  justice  on  this  sub- 
ject to  a  mere  reduction  from  the  amount 
of  the  rents  and  profits  of  the  land.^  The 
general  doctrine  is  fully  expounded  and 
supported  in  the  Digest,  where  it  is  applied, 
not  to  all  expenditures  upon  the  estate,  but 
to  such  expenditures  only  as  have  enlianced 
tlie  value  of  the  estate  (qualenus  pretiosior 
res  facta  esO,^and  beyond  what  he  has  been 
reimbursed  by  the  rents  and  profits.*  The 
like  principle  has  been  adopted  into  the  law 
of  the  modern  nations,  which  have  derived 
their  jurisprudence  from  the  Roman  law  ; 
and  it  is  especially  recognized  in  France, 
and  enforced  by  Pothier,  with  his  accus- 
tomed strong  sense  of  equity,  and  general 
justice  and  urgent  I'easoning.^  Indeed, 
some  jurists,  and  among  them  Cujacius, 
insist,  contrary  to  the  Roman  law,  that  even 
a  mala  fide  possessor  ought  to  have  an  al- 
lowance of  all  expenses,  which  have  en- 
hanced the  value  of  the  estate,  so  far  as 
the  increased  value  exists.^ 

"  Tlie  law  of  Scotland  has  allowed  the 
like  recompense  to  bona  fide  possessors, 
making  valuable  and  permanent  improve- 
ments; and  some  of  the  jurists  of  that 
country  have  extended  the  benefit  to  mala 
fide  possessors  to  a  limited  extent.'^  The 
law  of  Spain  affords  the  like  protection 
and  recompense  to  bona  fide  possessors,  as 
founded  in  natural  justice  and  equity.' 
Grotius,   Puffendorf,  and  Rutherford,  all 

1  Just.  Inst.  lib.  2,  tit.  1,  §§  30,  32  ;  2 
Story  on  Eq.  Jurisp.  §  799  h  ;  Vinn.  Com. 
ad  Inst.  lib.  2,  tit.  1 ;  Just.  §  30,  n.  3,  4, 
pp  194,19.5. 

2  See  Green  v.  Riddle,  8  Wheat.  79,  80. 

3  Dig.  Hb.  20,  tit.  1,  1.  29,  §  2  ;  Dig.  lib. 
6,  tit.  1,  1.  65;  Id.  1.  38;  Pothier,  Pand. 
lib.  6,  tit.  1,  n.  43,  44,  4.5,  46,  48. 

*  Dig.  lib.  6,  tit.  1,  1.  48. 

6  Pothier,  Dc  la  Propri^K?,  n.  343  -  353 ; 
Code  Civil  of  France,  arts.  552,  555. 

^  Pothier,  De  la  Proprie'te,  n.  350 ; 
Vinn.  ad  Inst.  lib.  2,  tit.  1,  1.  30,  n.  4, 
p.  195. 


affirm   the   same  doctrine,  as  founded  in 
the  truest  principles,  ex  cequo  et  bono.^ 

"  There  is  still  another  broad  principle 
of  the  Roman  law,  which  is  applicable  to 
the  present  case.  It  is,  that  where  a  bona 
fide  possessor  or  purchaser  of  real  estate 
pays  money  to  discharge  any  existing  en- 
cumbrance or  charge  upon  the  estate, 
having  no  notice  of  any  infirmity  in  his 
title,  he  is  entitled  to  be  repaid  the  amount 
of  such  payment  by  the  true  owner,  seek- 
ing to  recover  the  estate  from  him  i"  Now 
in  the  present  case,  it  cannot  be  ovei'looked 
that  the  lands  of  the  testator  now  in  con- 
troversy were  sold  for  the  payment  of 
his  just  debts,  under  tlie  authority  of  law, 
although  the  authority  was  not  regularly 
executed  by  the  administrator  in  his  mode 
of  sale  by  a  non-compliance  with  one  of 
the  prerequisites.  It  was  not,  therefore, 
in  a  just  sense,  a  tortious  sale  ;  and  the 
proceeds  thereof,  paid  by  the  purchaser, 
have  gone  to  discharge  the  debts  of  the 
testator,  and  so  far  the  lands  in  the  hands 
of  the  defendant  (Boyd)  have  been  re- 
lieved from  a  cliarge  to  which  tliey  were 
liable  by  law.  So  that  he  is  now  enjoy- 
ing his  iands,  free  from  a  charge  which,  in 
conscience  and  equity,  he  and  he  only,  and 
not  the  purchase!",  ought  to  bear.  To  the 
extent  of  the  charge  from  which  he  has 
been  thus  relieved  by  the  purchaser,  it 
seems  to  me  that  the  plaintiff,  claiming 
under  the  purchaser,  is  entitled  to  reim- 
bursement, in  order  to  avoid  a  circuity  of 
action,  to  get  back  the  money  from  the 
administrator,  and  thus  subject  the  lands 
to  a  new  sale,  or  at  least,  in  his  favor,  in 
equity  to  the  old  charge.  I  confess  my- 
self to  be  unwilling  to  resort  to  such  a 
circuity,  in  order  to  do  justice,  where,  upon 
the  principles  of  equity,  the  merits  of  the 
case  can  be  reached  by  aff"ecting  the  lands 
directly  with  a  charge  to  which  tliey  are 
ex  aequo  et  bono,  in  the  hands  of  the  present 
defendant,  clearly  liable. 

7  Bell,  Comm.  on  Law  of  Scotland, 
p.  139,  §  .538 ;  Ersk.  Inst.  b.  3,  tit.  1,  §  U  ; 
1  Stair,  Inst.  b.  I,  tit.  8,  §  6. 

8  1  Mor.  &  Carl.  Partid.  b.  3,  tit.  28,  1. 
41,  pp.  357,  358  ;  Asa  &  Manuel,  Inst,  of 
Laws  of  Spain,  102. 

9  Grotius,  b.  2,  ch.  10,  §§  1,  2,  3  ; 
Puffend.  Law  of  Nat.  &  Nat.  b.  4,  ch. 
7,  §  61  ;  Rutherf  Inst.  b.  1,  ch.  9,  §  4, 
p.  7. 

I''  Dig.  lib.  6,  tit.  1,1.  65;  Pothier,  Pand. 
^ib.  6,  tit.  1,  n.  43;  Potliier,  De  la  Pro- 
prieie,  n.  343. 


PART  IV.]  REAL  ACTIONS.  491 

law  was  found  to  operate  inequitably  in  very  many  cases,  and 
sometimes  to  work  gross  injustice ;  and  hence  several  of  the  States 
have  been  led  to  provide  remedies  at  law  for  the  protection  of 
honest  occupants,  and  for  securing  to  them  the  fruits  of  their  la- 
bor, fairly  bestowed  in  the  permanent  improvement  of  the  land. 
§  550.  There  is  great  diversity  also  in  the  modes  by  which  this 
object  is  effected.  In  some  of  the  States,  the  value  of  the  improve- 
ments is  allowed  only  by  way  of  set-off  to  the  claim  of  the  plaintiff 
for  mesne  profits.  In  others  the  occupant  has  a  remedy  by  filing 
a  declaration  in  a  special  action  on  the  case,  after  judgment  for 
possession  has  been  entered  against  him  in  the  action  of  ejectment ; 
in  which  case  the  writ  of  possession  is  stayed  until  a  trial  is  had  of 
the  action  for  the  value  of  the  improvements,  and  the  judgment  in 
the  latter  case  constitutes  a  lien  on  the  land.  In  other  States,  upon 
the  trial  of  the  possessory  action,  the  jury,  at  the  request  of  the 
respective  parties,  are  required  to  assess,  on  the  one  hand,  the  in- 
creased value  of  the  premises,  by  reason  of  the  improvements 
made  by  the  occupant  and  those  under  whom  he  claims  ;  and  on 
the  other  hand,  the  value  of  the  land,  exclusive  of  those  improve- 
ments;  and  the  plaintiff  is  put  to  his  election,  either  to  take  the 
land  and  pay  the  ascertained  value  of  the  improvements,  or  to 
abandon  the  land  to  the  tenant,  at  the  price  found  by  the  jury ; 
and  the  payments  in  either  case  are  made  by  instalments  fixed 

"  Those  considerations  have  been  sng-  coming  to  this  conchision,  to  be  distinctly 

gestcd,  because  they  greatly  weigh  in  my  understood  as  affirming  and  maintaining 

own  mind,  after  repeated  deliberations  on  the  broad  doctrine  as  a  doctrine  of  equity, 

the  subject.     They,  liowever,  will  remain  that  so  far  as  an  innocent  purchaser  for  a 

open  for  consideration  upon  the  report  of  the  valuable  consideration,  without  notice  of 

master,  and  do  not  positively  require  to  be  any  infirmity  in  his  title,  has,  by  his  im- 

decided  until  all  the  equities  between  the  provements  and  meliorations,  added  to  the 

parties   are  brought  by  his   report   fully  permanent  value  of  the  estate,  he  is  enti- 

before  the  oourt.     At  present,  it  is  ordered  tied  to  a  full  remuneration,  and  that  such 

to   be   referred  to  the  master  to  take  an  increase  of  value  is  a  lien  and  charge  on 

account  of  the  enhanced  value  of  the  prem-  the  estate,  which   the  absolute  owner  is 

Ises,  by  the   ameliorations   and   improve-  bound  to  discharge,  before  he  is  to  be  re- 

ments  of  the  plaintiff,  and  those   under  stored  to  liis  original  rights  in  the  land, 

wliom  he  claims,  after  deducting  all  the  This  is  the  clear  result  of  the  Roman  law  ; 

rents  and  profits  received  by  the  plaintiff,  and  it  has  the  most  persuasive  equity,  and, 

and  those  under  whom  he  claims ;  and  all  I  may  add,  common   sense  and  conimoa 

other  matters  will  be  reserved  for  the  con-  justice,  for  its   foundation.     The  Better- 

sideration  of  the  court  upon  the  coming  in  ment  Acts  (as  they  are  commonly  called) 

of  his  report."     See  1  Story,  R.  494-499.  of  the  States  of  Massachusetts  and  Maine 

Afterwards,  upon  the  coming  in  of  the  re-  and   of  some   other    States,  are  founded 

port,  by  which  the  increased  value  of  the  upon  the  like  equity,  and  were  manifestly 

land,  by  reason  of  the  plaintiff's  improve-  intended  to  support  it,  even  in  suits  at  law 

ments,  was  ascertained  at  a  certain  sum,  the  for   the  recovery  of  the  estate."     See  2 

learned  judge  decreed,  that  the  plaintiff  was  Story,  R.  607,  608.      See   also  Swan  ». 

entitled  to  that  simi,  as  a  lien  and  charge  Swan,  8  Price,  518;  3  Powell  on  Mort 

oil  the  land  ;  concluding  thus :  "I  wish,  in  957,  note  Q.,  by  Coventry. 


492  LAW   OF   EVIDENCE.  [PART  IV. 

by  law,  and  enforced  by  issuing  or  withholding  the  writ  of  po?- 
session. 

§  551.  The  character  of  the  occupants^  also,  is  the  subject  of  some 
diversity  of  legislation.  In  general,  the  occupancy  must  have  been 
in  good  faith,  and  without  actual  fraud.  But  in  some  States,  the 
right  to  remuneration  for  improvements  is  given  to  all  occupants, 
who  have  been  in  possession,  claiming  the  exclusive  title  for  a  cer- 
tain number  of  years ;  which  of  course  includes  disseisors,  as  well 
as  those  claiming  under  them  ;  while  in  other  States,  it  is  restricted 
to  persons  claiming  under  patents,  and  public  grants,  and  by  deeds 
of  conveyance  ;  thus  intending  to  exclude  all  who  knowingly  enter 
by  wrong,  and  without  color  of  title.  In  others,  again,  the  im- 
provements, made  after  notice  of  the  paramount  title,  are  express- 
ly excluded  from  the  consideration  of  the  jury. 

§  552.  It  is  obvious  that,  in  a  work  like  tlie  present,  it  would  be 
inexpedient  to  treat  of  all  these  varieties  of  remedy,  or  indeed  to 
do  anything  more  than  to  state  the  very  few  general  rules  of  the 
common  law,  which  are  recognized  in  the  absence  of  any  statutory 
provisions  ;  referring  the  reader  to  the  statutes  and  decisions  of 
each  particular  State  for  whatever  is  peculiar  in  its  own  jurispru- 
dence. 

§  553.  It  is  a  general  rule  in  all  these  actions,  as  we  have 
already  remarked  in  respect  to  ejectments,  that  the  plaintiff  must 
recover  on  the  strength  of  his  own  title,  and  not  on  the  weakness  of 
his  adversary's  ;  and  that  he  must  show,  that  he  has  the  legal  in- 
terest, and  a  possessory  title,  not  barred  by  the  statute  of  limita- 
tions.^  The  same  rules  also  apply  here,  which  have  been  already 
mentioned  under  the  title  of  ejectment,  in  regard  to  the  method 
of  proving  the  plaintiff's  title? 

§  554.  In  a  writ  of  right,  proof  of  a  seisin  is  necessary,  as  well 
as  in  other  cases  ;  but  a  title  by  disseisin  is  sufficient  to  maintain 
the  action,  if  the  tenant  cannot  show  a  better  title  ;  ^  and  the  dev- 
isee of  vacant  and  unoccupied  land  has,  by  operation  of  law,  a 
sufficient  seisin  to  maintain  this  action,  without  an  actual  entry.* 

1  See  si//)ra,  §  303.    The  writ  of  rijjht  be-  p.  280;  [Slater  v.  Rawson,  6   Met.  439; 

ingnow  limited  tothesame  period  with  writs  Hubbard  v.  Little,  9  Cush.  475  ;  Hough  v. 

of  entry,  the  proof  of  the  right  involves,  Patrick,  26   Vt.  435.     But  a  mere  entry 

of  course,  the  proof  of  a  possessory  title.  upon  land,  under  a  deed  dufectivelvexccut- 

'^  See  .SH/jra  ,  §§305,  307-314,  316,  317,  ed,  not  followed   by  any  aets   of  owner- 

318,  329.  ship  or  continued  possession,  will  not  sus- 

3  Bradstrcet  v.  Clark,  12  Wend.   602;  tain  a  writ  of  entry.     Nichols  v.  Todd,  2 

Hunt  17.  Hunt,  3  Met.  175;  Speed  v.  Bu-  Gray,  568.] 
ford,  3  Bibb.  57  j  Jacksoa  on  Real  Actions,        *  'Ward  v.  Fuller,  15  Pick.  185 ;  Green 


PART  IV.]  REAL  ACTIONS.  498 

Proof  of  actual  perception  of  profits  is  not  necessary,  the  averment 
of  the  taking  of  esplees  not  being  traversable;^  and  the  tenant's 
right  of  possession  is  no  bar  to  the  demandant's  right  of  recovery 
in  this  action.^  The  mise,  when  joined,  puts  in  issue  the  whole 
title,  including  the  statute  of  limitations  ;  and  under  it  the  tenant 
may  give  in  evidence  a  release  from  the  demandant,  after  action 
brought,  or  any  other  matter,  either  establishing  his  own  title,  or 
disproving  that  of  the  demandant,  except  a  collateral  warranty .^ 
But  if  a  deed  from  the  demandant  to  a  stranger  is  shown,  it  may 
be  rebutted  by  evidence  showing  that,  at  the  time  of  its  execution 
and  delivery,  the  grantor  was  disseised,  and  that  therefore  nothing 
passed  by  the  deed.* 

§  555.  The  seisin  of  the  plaintiff  or  demandant,  in  any  real  ac- 
tion, is  proved  prima  facie  by  evidence  of  his  actual  possession, 
which  is  always  sufficient  against  a  stranger.  Such  a  possession, 
with  claim  of  title,  is  sufficient  to  enable  a  grantor  to  convey  ;  and 
the  grantee,  entering  under  such  a  conveyance,  acquires  a  free- 
hold,^ even  though  the  grantor  be  a  person  7ion  compos  mentis; 
the  deed  in  that  case  being  voidable  only,  and  not  void.  But  no 
seisin  is  conveyed  by  a  naked  release.^  A  seisin  may  also  be 
proved  by  the  extent  of  an  execution  on  the  land  of  a  judgment 
debtor,  which  gives  a  seisin  to  the  creditor.^  If  the  actual  posses- 
sion is  mixed  and  concurrent,  the  legal  seisin  is  in  him  who  has 
the  title ;  and  a  legal  seisin  also  carries  with  it  the  possession,  if 
there  is  no -adverse  possession.^  It  is  sufficient,  prima  facie,  to 
prove  a  seisin  at  any  time  anterior  to  the  period  in  question,  since 
it  will  be  presumed  to  continue  until  the  contrary  is  shown .^ 

§  556.  The  plea  of  nul  disseisin,  in  a  writ  of  entry,  puts  in  issue 
the  legal  title  to  the  land,  or,  in  other  words,  the  seisin  on  which 
the  demandant  has  counted,  and  the  lawfulness  of  the  tenant's 
entry.i'^    If^  therefore,  it  is  pleaded  in  bar  of  an  action  brought  by 

u.  Chelsea,  24  Pick.  71.    But  if  the  land  «  Wait  v.  Maxwell,  5  Pick.  217  ;  Ken- 
be  not  vacant  and  unoccupied,  the  devisee  nebec  Prop'rs  v.  Call,  1  Mass.  483. 
must  prove  Ms  own  seisin.  Wells  v.  Prince,  '^  Langdon  v.  Potter,  3  Mass.  215. 
4Ma.^s.  G4.  ^  Codman  v.   Winslow,  10  Mass.  146; 

1  Green  v.  Liter,  8  Cranch,  246 ;  Ward  Kennebec  Prop'rs  v.  CaU,  1  Mass.  483, 
t   Fuller,  15  Pick.  185.  484. 

2  Jackson  on  Real  Actions,  pp.  282,  283.         9  Kennebec  Prop'rs  v.  Spnnger,  4  Mass. 
»  Ten  Evck  v.  Waterburv,  7  Cowen,  51 ;     416  ;  Brimmer  v.  Long  Wharf  Prop  rs,  5 

Poor  I'.  Robinson,  10  Mass!  131,  134.  Pick.   131,  135.      [*  Osgood  v.  Coates,  1 

*  Knox  V.  Kellock,  14  Mass.  200.  Allen.  77.] 

5  Newhall  v.  Wheeler,  7  Mass  189, 199;  «  Jackson  on  Real  Actions,  pp.  5,  1.5,  ■ 

Higbee  v.  Rice,  5  Mass,  345,  352  ;  Wardr.  Green  r.  Kemp,  13  Mass.  515,  520;  Wol- 

Fuller,  15  Pick.  185.  cott  v.  Knight,  6  Mass.  418,  419 


494  LAW   OF  EVIDENCE.  [PART  IV. 

a  trustee  against  the  cestui  que  trust,  it  entitles  the  demandant  to 
recover.^  Under  tliis  issue,  the  tenant  cannot  avail  himself  of  any 
objection  to  the  form  of  the  action  ;  ^  he  cannot  give  non-tenure  in 
evidence ;  ^  nor  show  that  he  is  but  a  tenant  at  will ;  *  nor  give 
in  evidence  the  title  of  a  stranger  under  which  he  does  not  claim, 
nor  though  he  claims  to  hold  as  his  servant ;  ^  nor  a  title  acquired 
by  himself  by  conveyance  from  a  third  person  since  the  commence- 
ment of  the  action.^  But  under  this  issue,  he  may  show  a  convey- 
ance from  the  demandant  or  his  ancestor  to  a  stranger,  for  the 
purpose  of  disproving  the  demandant's  allegation  of  seisin ;  "^  and 
the  demandant,  as  has  already  been  remarked,  in  the  case  of  a 
writ  of  right,  may  rebut  this  evidence  by  proof  that,  at  the  time 
of  the  conveyance,  the  grantor  was  not  seised,  and  so  nothing 
passed  by  the  deed.^ 

§  557.  Where  the  tenant  claims  by  a  disseisin,  ripened  into  a 
good  title  by  lapse  of  time,  he  must  show  an  actual,  open,  and  ex- 
clusive possession  and  use  of  the  land  as  his  own,  adversely  to  the 
title  of  the  demandant.  It  must  be  known  to  the  adverse  claim- 
ant, or  be  accompanied  by  circumstances  of  notoriety,  such  as 
erecting  buildings  or  fences  upon  the  land,  from  which  he  ought 
and  may  be  presumed  to  know,  that  there  is  a  possession  adverse 
to  his  title.^     But  a  fence  made  by  the  mere  felHng  of  trees  on  a 

i  Russell  V.  Lewis,  2  Pick.  508,  510.  ^  King  r.  Barns,  13  Pick.  24,  28  ;  Stan- 
2  Green  v.  Kemp,  13  Mass.  515,  520.  ley  v.  Perlcy,  5  Greenl.  369 ;  Hall  v.  Ste- 
8  Higbce  V.  Rice,  5  Mass.  532,  per  Par-  vens,  9  Met.  418;  Noyes  v.  Dyer,  12 
sons,  C.J. ;  Roberts  ?;.  Whiting,  16  Mass.  Shepl.  468;  Cutler  v.  Lincoln,  3  Cush. 
186;  AMcn  v.  Murclock,  13  Mass.  256,  125;  [Bruce  ii.  Mitchell,  39  Maine,  390.] 
259  ;  [Washington  Bank  v.  Brown,  2  Met.  ^  Knox  v.  Kellock,  14  Mass.  200  ;  Wol- 
293;  Wheelwright  v.  Freeman,  13  lb.  cott  r.  Knight,  6  Mass.  418  ;  Sw/jra,  §  5.54. 
155  ;  Burridge  v.  Fogg,  8  Cush.  184.]  9  Kennebec  Prop'rs  v.  Springer,  4  Mass. 
*  Ibid. ;  Pray  v.  Pierce,  7  Mass.  381.  416 ;  Doe  v.  Prosser,  Cowp.  217  ;  Kenne- 
6  Mechanics'  Bank  v.  Williams,  17  Pick,  bee  Prop'rs  v.  Call,  1  Mass. '483  ;  Little  v. 
438 ;  Stanley  v.  Perley,  5  Greenl.  369 ;  Libby,  2  Greenl.  242 ;  Poignard  v.  Smith, 
Shapleigh  v.  Pilsbury,  1  Greenl.  271  ;  6  Pick.  172  ;  Norcross  v.  AVidgery,  2  Mass. 
Heatli  V.  Knapp,  4  Barr,  230.  506;  Supra,  §  311  ;  Br)'on  v.  Atwater,  5 
6  Andrews  v.  Hooper,  13  Mass.  472,  Day,  181,  188,  189;  Mitchell  v.  Warner, 
476  ;  [Curtis  v.  Francis,  9  Cush.  427  ;  5  Conn.  521  ;  Teller  v.  Burtis,  6  Johns. 
Tain  tor  I'.  Hemmenway,  7  lb.  573.  Nor  197;  [Stearns  r.  Hendersass,  9  Cash.  497. 
is  it  a  defence  to  a  writ  of  entry  that  the  To  maintain  a  title  by  disseisin  it  is  not 
tenant  is  the  owner  of  an  easement  in  the  enough  to  show  that  the  legal  owner  had 
demanded  premises,  and  therefore  has  a  actual  knowledge  of,  and  assented  to,  acts  of 
right,  as  against  the  demandant,  to  use  it  ownership  upon  his  lands,  unless  the  acts 
forever  as  a  passage-way.  Morgan  r.  are  of  such  a  nature  as  to  work  a  dis- 
Mooie,  3  Gray,  322  ;  nor  that  the  demand-  seisin.  Cook  v.  Babcock,  11  Cush.  210 
ant  holds  the  land  subject  to  a  resulting  See  also  Slater  v.  Jepherson,  6  lb.  129; 
trust  in  his  (the  tenant's)  favor.  Crane  v.  Arnold  v.  Stevens,  24  Pick.  106  ;  Smith  v. 
Crane,  4  Gray,  323.  But  the  demand:int  Lloyd,  25  Eng.  Law  &  Eq.  R.  492  ;  Put- 
is  not  precluded  from  maintaining  his  writ  nam  Free  School  v.  Fisher,  38  Maine,  324. 
bj  having  mortgaged  the  land  pending  the  A  wife  has  no  such  privity  of  estate  with 
action.    Woodman  v.  Smith.  37  Maine,  21.]  her  husband  in  land  of  which  he  died  in  an 


PART  IV.]  KEAL  ACTIONS.  495 

line,  lapping  one  upon  another,  is  not  sufficient  for  this  purpose  ;* 
much  less  is  the  running  and  marking  of  lines  by  a  surveyor, 
under  the  direction  of  one  not  claiming  title  ;  nor  the  occasional 
cutting  of  the  grass. ^  An  entry  and  occupancy  under  a  deed  of 
conveyance  from  a  person  without  title  will  constitute  a  disseisin 
of  the  true  owner ;  ^  extending  to  the  whole  tract  described  in  the 
conveyance,  if  the  deed  is  registered  ;  because  the  extent  of  the 
disseisor's  claim  may  be  known  by  inspection  of  the  public  regis- 
try.* But  an  entry  under  a  registered  deed,  and  the  payment  of 
taxes  assessed  upon  the  land,  is  not  sufficient  evidence  of  a  disseis- 
in, unless  there  was  also  a  continued  and  open  possession.^ 
"Where  an  enclosure  of  the  land  by  fences  is  relied  upon,  it  must 
appear  that  the  fences  were  erected  with  that  intent,  and  not  for 
a  different  purpose,  such  as  the  enclosure  and  protection  of  other 
lands  of  the  party  ;  of  which  the  jury  are  to  judge.^  So,  if  the 
owner  of  a  parcel  of  land  should,  through  inadvertency,  or  igno- 
rance of  the  dividing  line,  include  a  part  of  the  adjoining  tract 
within  his  enclosure,  it  is  no  disseisin  of  the  true  owner.^ 

§  558.  The  evidence  of  disseisin  may  be  rebutted  by  proof  that 
the  disseisor  had  consented  to  hold  under  the  disseisee  ;  or,  that 
he  had  abandoned  his  possession.^  But  a  mere  mistake  of  the  par- 
ty in  possession,  which,  as  we  have  just  seen,  will  not  constitute  a 
disseisin,  will  not,  for  the  like  reason,  amount  to  proof  of  an  aban- 
donment of  his  possession.^ 

§  559.  Where  the  tenant  by  the  laws  of  the  State  is  allowed  a 
compensation  for  the  lasting  improvements  made  by  him  on  the 
land,  the  evidence  is  to  be  directed,  not  to  the  amount  of  his  ex- 
penditures, but  to  the  present  increased  value  of  the  premises,  by 
reason  of  the  improvements.  And  these  ordinarily  consist  of 
buildings,  wells,  valuable  trees  planted  by  the  tenant,  durable 
fences,  and  other  permanent  fixtures. 

adverse  possession  to  the  real  owner,  that  quieting  his  title,  without  thereby  abandon- 

utT  continual  adverse  possession  after  his  ing  his  character  of  an  adverse  possessor, 

decease  can  be  tacked  to  his  to  give  her  a  Ibid.      See   also   Blight    v.   Rochester,   7 

complete    title    by   disseisin.      Sawyer   v.  Wheat.535  ;  Fox  y.Widgery,4  Greenl.  214. 

Kendall,  10  Cush.  241.     See  also  Cruise's  *  Kennebec  Prop'rs  y.  Laboree,  2  Greenl. 

Digest,  tit.  1,  §§32 -34,  vol.  1,  p.  53,  [*52];  275. 

Greenleaf's  2d  edit.  1856,  and  notes.]  5  Little   v.   Megquier,   2    Greenl.    176; 

1  Coburn  v.  Hollis,  3  Met.  125.  Bates  v.  Norcross,  14  Pick.  224. 

2  Keunebec  Prop'rs  v.  Springer,  4  Mass.  ^  Dennett  v.  Crocker,  8  Greenl.  239. 
416.  And  see  Weston  v.  Reading,  5  Conn.  257, 

3  Warren  v.  Child,  11  Mass.  222 ;  North-  258. 

rop  V.  Wright,  7  Hill,  N.  Y.  Rep.  476,  487  ^  Brown  v.  Gay,  3  Greenl.  126 ;  Gatei 

-489,   per   Walworth,    Ch.      The    party  t;.  Butler,  3  Humphr.  447. 

thus  in  possession  may  take  a  deed  from  a  ^  Small  v.  Proitor,  15  Mass.  495. 

hostile  claimant,  for  the  mere  purpose  of  ^  Ross  v.  Gould,  5  Greenl.  204. 


490  LAW    OF   EVIDENCE.  [PAKT  IV 


REPLEVIN. 

I*  §  560.  Replevin  lies  for  recorery  of  goods  in  specie  taken  and  detained  from  owner's 

possession,  and  damages  for  detention. 

561.  Plaintiff  must  prove  general  or  special  property  in  goods  taken  at  time  of  cap- 

tion, and  right  of  immediate   and  exclusive  possession.    Action  lies  for 
detention  ;  when  taking  is  sho\vn,  must  be  actual  taking. 

562.  Under  plea  of  non  cepit,  plaintiff  must  prove  defendant  had  goods  in  place 

mentioned  in  declaration. 

563.  "Where  defendant  pleads  property  in  himself,  as  well  as  non  cepit,  burden  is  on 

plaintiff. 

564.  An  avowry  or  cognizance  of  the  taking  necessary  ordinarily,  when  defendant 

would  obtain  judgment  for  a  return  of  goods. 

565.  What  defendant  must  prove  under  plea  of  non  demisit  or  non  tenuit  by  plaintiff. 

566.  Plea  of  riens  in  arrear  puts  in  issue  only  the  fact  that  nothing  is  due. 

567.  Allegation  that  the  conusor  made  the  distress  as  bailiff  to  another,  is  trav- 

ersable. 

568.  Proof  must  always  be  of  as  large  a  right  as  is  pleaded. 

569.  A  tender,  whether  of  rent  or  of  amends  for  damage  by  cattle,  if  made  before 

the  taking,  renders  the  distress  unla^vful ;  if  made  after  distress,  but  before 
impounding,  renders  detention  unlawful. 

570.  Party  under  whom  defendant  makes  cognizance,  how  far  competent  witness.] 

§  560.  This  action  lies  for  the  recovery,  in  specie,  of  any  personal 
chattel  which  has  been  taken  and  detained  from  the  owner's  pos- 
session, together  with  damages  for  the  detention  ;  unless  the  taking 
and  detention  can  be  justified  or  excused,  or  the  right  of  action  is 
suspended  or  discharged.^     It  lies  at  common  law,  not  only  for 

1  Hammond's  Nisi  Prius,  p.  372.  [If  an  be  fixtures,  and  whether  they  are  or  not 
action  of  replevin  is  dismissed  for  infor-  is  matter- of  evidence,  and  need  not  be 
mality  in  the  replevin  bond,  and  judgment  stated  in  the  pleading.  Brearley  r.  Cox, 
is  given  for  the  defendant  for  a  return,  and  4  Zabr.  (N.  J.)  387.  In  such  "a  suit  the 
the  plaintiff  returns  the  property  to  the  affidavit  must  aver  that  the  property  in 
place  whence  he  first  took  it,  he  may  after-  question  is  personal  estate.  Chatterton  v. 
wards  maintain  another  action  of  replevin  Saul,  16  111.  149.]  [*  Defendant  made  a 
for  the  same  property,  against  the  same  levy  upon  property  in  plaintiff 's  possession, 
defendant,  upon  the  original  unlawful  tak-  and  indorsed  the  levy  upon  his  execution, 
ing,  although  the  defendant  has  not  taken  but  went  away  without  removing  the  prop- 
out  a  writ  of  return,  nor  actually  received  erty.  Plaintiffbrouglit  replevin  therefor.  It 
the  property  under  the  judgment  in  the  was  held  that  the  plaintiff,  being  himself  in 
first  action.  Walhridge  v.  Shaw,  7  Cash,  the  actual  possession  of  the  property  at  the 
560 ;  Fisher  v.  Whoollery,  25  Penn.  State  time  of  bringing  the  suit,  could  not  main- 
R.  197.  Replevin  will  lie  for  such  articles  tain  the  action.  Hickey  v.  Hinsdale,  12 
as  "  mills,  barns,  steam-engines,  offices,  and  Mich.  99.] 
Bheda."    Such  articles  may,  or  may  not, 


PART  IV.] 


REPLEVIN. 


497 


goods  distrained,  but  for  goods  taken  and  unjustly  detained  for 
any  other  cause  whatever ;  except  that,  where  goods  are  taken  by 
process  of  law,  the  party  against  whom  the  process  issued  cannot 
replevy  them ;  but  if  the  goods  of  a  stranger  to  the  process  are 
taken,  he  may  replevy  them  from  the  sheriff.^ 


1  Gilbert  on  Replevin,  p.  141  ;  Rooke's 
case,  5  Co.  99  ;  Callis  on  Sewers,  p.  197  ; 
Clark  V.  Skinner,  20  Johns.  470.  This 
point  is  treated  ably  and  with  deep  research 
in  12  Am.  Jurist,  pp.  104,  117,  where  the 
above  authorities  with  others  are  reviewed. 
See  also  Allen  v.  Crary,  10  Wend.  349  ; 
Seaver  i'.  Dingley,  4  Greenl.  306.  In 
New  York,  the  right  of  a  stranger  to  re- 
plevy goods  taken  by  the  sheriff  is  limited 
to  goods  not  in  the  actual  possession  of  the 
judgment  debtor  at  the  time  of  the  taking. 
Thompson  v.  Button,  14  Johns.  84 ;  Judd 
V.  Fox,  9  Cowen,  259. 

[In  the  cases  of  Richardson  v.   Reed, 
and  Skilton  v.  Winslow,  4  Gray,  441,  the 
question   was  whether   replevin   could   be 
maintained   against  a  creditor   at  whose 
suit  an  attachment  was  made  of  goods  not 
the  property  of  his  debtor,  either  alone  or 
jointly  with  the  attaching  officer,  and  it 
was  decided  that  the  action  would  not  lie. 
The  opinion  of  the  court,  by  Metcalf,  J., 
was  as  follows  :  "  Though  an  officer  who 
attaches,  and  a  plaintiff  who  directs  him  to 
attach  A's  goods,  on  a  writ  against  B,  are 
joint  trespassers,  and  may  be  sued  jointly 
in  an  action  of  trespass  or  trover,  yet  they 
cannot  be  sued  jointly  in  an  action  of  re- 
plevin.    The  grounds  and  incidents  of  a 
replevin  suit  are    incompatible  with    the 
joinder  of  the  creditor  and  officers  as  de- 
fendants.     The  writ  of  replevin  assumes 
that  the  goods  which  are  to  be  replevied 
have  been  taken,  detained,  or  attached  by 
the  defendant,  and  are  in  his  possession  or 
under  his  control ;  and  it  directs  that  they 
Bhall   be   replevied   and   delivered   to   the 
plaintiff",  provided  he  shall  give  bond  con- 
ditioned, among  other  things,  to   restore 
and  return  the  same  goods  to  the  defendant, 
and  pay  him  damages,  if  such  shall  be  the 
final   judgment    in   the  action.     But  at- 
tached jioods  are  in  the  legal  custody  and 
possession  of  the  oflScer  only.     The  attach- 
ing creditor  has  no  property  in  them,  gen- 
eral or  special ;  no  right  to  the  possession 
of  them  ;  and  no  right  of  action  against  a 
third  person  who  may  take  them  from  the 
oflBcer  or  destroy  them.     Ladd  v.  North,  2 
Mass.  516.     How  then  can  the  goods  be 
returned,  on  a  writ  of  return  or  reprisal, 
to  him  who  never  had  possession  of  them, 
nor  the  right  of  possession  ?     Or  how  can 
he  be  entitled  to  damages  for  the  taking 
VOL.  U.  32 


and  detaining  of  goods  in  which  he  had  no 
property  ? 

"  The  plaintiff's  counsel  cited  Allen  r. 
Crary,  10  Wend.  349,  as  an  authority  for 
sustaining  tliese  actions.     In  that  case  the 
plaintiff,  whose  goods  had  been  taken  on 
an  execution  against  a  third  person,  main- 
tained replevin  against  the  judgment  credi- 
tor who   directed   the   officer  to  take  the 
goods.    The  court  proceeded  on  the  ground 
that,  as  both  the  officer  and  creditor  were 
trespassers,  replevin  would  lie  against  either 
of  them,   because  it   would   lie   wherever 
trespass  de  bonis  asportatis  would.     And  in 
a  subsequent  case  in  the  same  State,  the 
court   maintained   an   action   of   replevin 
against  the   officer  and  creditor   jointly. 
Stewart  v.  Wells,  6  Barb.    79.     But  we 
cannot  admit  the  position  that  replevin  will 
lie  wherever  trespass  de  bonis  will.     The 
two  actions  are  not,  in  all  cases,  concur- 
rent.    By  the  common  law,  replevin  can- 
not be  maintained  where  trespass  cannot ; 
for,  by  that  law,   an  unlawful   taking  of 
goods  is  a  prerequisite  to  the  maintenance 
of  replevin.     2  Leigh,  N.  P.  1323  ;  Meany 
V.  Head,  1  Mason,  322  ;  Hopkins  v.  Hop- 
kins, 10  Johns.  373.     But  trespass  will  lie 
in  cases  where  replevin  will  not.     Replev- 
in, being  an  action  in  which  the  process  is 
partly  in  rein,  will  not  lie  where  it  is  im- 
practicable or  unlawful  to  execute  that  part 
of  the  process  according   to  the  precept. 
Thus,   replevin   will   not  lie  against  him 
who  takes  goods   and  destroys  them,   or 
sells  and  delivers  them  to  a  stranger;  yet 
he  might  be  sued  in  trespass.     So  where 
an  officer  seized  A's  property,  first  on  an 
execution  against  B,  and  then  on  an  exe- 
cution against  A,  it  was  held  by  the  court 
which  decided  the  case  of  Allen  v.  Crary, 
that  although  A  might  maintain  trespass 
for  the  first  seizure,  yet  he  could  not  re- 
plevy  the   property,   because   he   had  no 
right  to  the  possession  of  it  after  the  last 
seizure.     Sharp  v.  Whittenhall,  3  Hill,  576. 
In  that  case,  and  in  Brockway  v.  Burnap, 
12   Barb.  351,  the  former  dicta,  that  re- 
plevin would  lie  wherever  trespass  de  bonis 
would,  were  denied ;  and  in  th«  latter  case 
it  was  said   that  in   Allen  v.   Crary  the 
court,  by  sustaining  replevin  against  a  de- 
fendant who  had  not  the  property  in  hia 
possession,  '  pushed  out   the   analogy  be- 
tween  trespass  de  bonis  asportatis  and  re- 


498 


LAW   OF  EVIDENCE. 


[part  IV. 


§  561.  Where  the  issue  raises  the  question  of  title,  the  plaintiff 
must  prove,  that  at  the  time  of  the  caption  he  had  the  general 
or  a  special  property  in  the  goods  taken,  and  the  right  of  immediate 
and  exclusive  possession}  But  a  mere  servant,  or  a  depositary  for 
safe  custody,  has  not  such  property  as  will  support  this  action,  his 
possession  being  that  of  the  master  or  bailor.^  It  is  not  always 
necessary  to  prove  a  taking  of  the  goods,  since  the  action  may  \)Q 
maintained  against  a  bailee,  by  proof  of  an  unlawful  detention? 
But  when  a  taking  is  to  be  shown,  it  must  be  an  actual  taking. 
Thus,  it  has  been  held,  that  merely  entering  at  the  custom-house, 
by  the  agent  of  the  owners,  goods  already  in  the  public  stores,  and 
paying  the  duties  thereon,  without  any  actual  removal,  but  taking 
a  permit  for  their  delivery  on  payment  of  storage,  is  not  such 
a  taking  as  will  support  an  action  of  replevin  against  the  agent.* 


plevin  further  than  is  warranted  by  the 
cases.'  See  also  Roberts  v.  Randel,  2 
Sandf.  712,  713. 

"  In  our  opinion,  replevin  cannot  be 
maintained,  in  this  Commonwealth,  against 
a  person  who  has  no  possession  or  control 
of  the  goods  to  be  replevied;  replevied 
goods  cannot  be  restored  and  returned  to 
a  person  from  whom  they  were  never  ta- 
ken; and  sucii  person  cannot  rightfully 
be  made  a  defendant,  sole  or  joint,  in  an 
action  of  replevin."  [*But  see  Esty  v. 
Love,  32  Vt.  744,  where  it  is  held  that 
replevin  may  be  maintained  against  the 
attaching  creditor  and  the  officer  jointly, 
when  the  former  assisted  in  taking  the 
property,  and  took  it  into  his  own  posses- 
sion after  the  attachment.  The  owner 
of  goods  cannot  maintain  an  action 
against  an  officer  for  taking  them  in  the 
due  service  of  a  writ  of  replevin  against 
another  person  who  had  them  in  his  posses- 
sion.    Willard  v.  Kimball,  10  Allen,  211.] 

1  Co.  Lit.  145  b ;  Gordon  v.  Harper,  7 
T.  R.  9;  Gates  v.  Gates,  1.5  Mass.  310; 
Collins  V.  Evans,  15  Pick.  63;  Rogers  v. 
Arnold,  1 2  Wend.  30 ;  Wheeler  v.  Train, 
4  Pick.  168;  Smith  v.  Williamson,  1  Har. 
&  J.  147  ;  Ingraham  v.  Martin,  3  Shepl. 
373;  [Lamb  v.  Johnson,  10  Cush.  126; 
Esson  V.  Tarbell,  9  lb.  407;  Kimball  v. 
Thompson,  4  lb.  441  ;  Lockwood  v.  Perry, 
9  Met.  440  ;  Kidd  v.  Belden,  19  Barb.  266 ; 
Rockwell  V.  Saunders,  lb.  473 ;  Quinn  v. 
Kimball,  23  Penn.  State  R.  193  ;  Harlan  v. 
Harlan,  15  lb.  507.]  [*  Johnson  v.  Neale, 
6  Allen,  220.  No  allegation  of  the  value 
of  the  goods  need  be  made  by  the  ])laintifr 
in  Massachusetts,  or  in  Maine.  Pomeroy 
V.  Trimper,  8  Alien,  401  ;  Thomas  v. 
SpoflFord,  46  Maine,  410.] 


2  Templeman  v.  Case,  10  Mod.  25; 
Waterman  v.  Robinson,  5  Mass.  303; 
Ludden  v.  Leavitt,  9  Mass.  104;  Warren 
V.  Leland,  Id.  265 ;  Dunham  v.  WyckoflF, 
2  Wend.  280;  Miller  v.  Adsit,  16  Wend. 
335.  [Nor  can  an  agent,  who  is  employed 
by  his  principal  to  receive,  pay  for,  and 
forward  to  him  certain  goods  contracted 
for  by  the  principal,  part  of  which  have 
been  delivered  to  the  agent,  maintain  re- 
plevin for  the  balance  not  delivered,  which 
the  contractor  had  promised  but  faii--  i  to 
deliver,  and  which  the  agent  had  paid  for. 
Dixon  V.  Hancock,  4  Cush.  96.  See  also 
Updike  V.  Henry,  14  111.  378.  An  auc- 
tioneer, who,  as  agent  of  the  owner,  sells 
and  delivers  goods  on  a  condition  which  is 
not  complied  with,  may  maintain  replevin 
therefor.  Tyler  v.  Freeman,  3  Cush. 
261.] 

3  F.  N.  B.  (69)  G. ;  Badger  v.  Phinney, 
15  Mass.  359,  362,  per  Putnam,  J. ;  Shan- 
non V.  Shannon,  1  Sch.  &  Lefr.  327,  per 
Ld.  Redesdale ;  Baker  v.  Fales,  16  Mass. 
147 ;  Illsley  v.  Stubbs,  5  Mass.  284  ;  Sea- 
ver  V  Dingley,  4  Greenl.  306  ;  Galvin  v. 
Bacon,  2  Fairf  28  ;  [Osgood  v.  Green,  1 0 
Foster  (N.  H.)  210.]  But  see  Meany  v. 
Head,  1  Mason,  319,  322,  that  replevin 
does  not  lie  without  a  tortious  taking. 
See  also  Reeves  v.  Morris,  1  Armstr.  Ma- 
cartn.  &  Ogle,  159.  [*Also  Harwood  v. 
Smethurst,  5  Dutch.  195,  a  late  case  where 
this  subject  is  discussed  by  Whelpley,  Ch.  J. 
Opinion  of  Putnam,  J.,  in  Baker  v.  Fales, 
supra,  noticed  and  the  conclusion  reached 
that  the  law  of  New  Jersey,  following  the 
decisions  of  New  York,  is  that  replevin 
will  not  lie  without  an  unlawful  taking.] 

*  Wliitewell  v.  Wells.  24  Pick.  25 


PAET  IV.]  REPLEVIN.  499 

So  this  action  cannot  be  maintained  against  a  sheriff,  who  has 
made  an  attachment  of  the  plaintiff's  goods,  but  has  left  them  in 
the  custody  of  the  plaintiff  as  his  bailee,  without  any  actual  taking 
and  removal  of  them.^ 

§  562.  The  general  issue  in  this  action  is  non  cepit,  which  ad- 
mits the  plaintiff's  title,  and  under  which  it  is  incumbent  on  the 
plaintiff  to  prove  that  the  defendant  had  the  goods,  in  the  place 
mentioned  in  the  declaration  ;  for,  the  action  being  local,  the  place 
is  material  and  traversable.^  Proof  of  the  original  taking  in  that 
place  is  not  necessary,  for  the  wrongful  taking  is  continued  in 
every  place  in  which  the  goods  are  afterwards  detained.^  But 
under  this  issue  the  defendant  cannot  have  a  return  of  the  goods, 
if  found  for  him  ;  it  merely  protects  him  from  damages.  If  he 
would  defend  on  the  ground  that  he  never  had  the  goods  in  the 
place  mentioned,  he  should  plead  cepit  in  alio  loco,  which  is  a 
good  plea  in  bar  of  the  action.*  This  plea  does  not  admit  the 
taking  as  laid  in  the  declaration  ;  and  therefore  the  plaintiff  must 
prove  such  taking,  or  fail  to  recover.^ 

§  563.  If  the  defendant,  besides  the  plea  of  non  cepit,  also 
pleads  property,  either  in  himself  or  a  stranger,  and  traverses  the 
right  of  the  plaintiff,  which  he  may  do  with  an  avowry  of  the  tak- 
ing, the  material  inquiry  will  be  as  to  the  property  of  the  plaintiff, 

'  Lathrop  v.  Cook,  2  Shepl.  414.  [Nor  Freeman  in  error  v.  Howe,  24  How.  U.  S. 
can  it  be  maintained  against  a  pound-  R.  450.  Reversing  decision  in  Howe  v. 
keeper  who  receives  and  impounds  beasts  Freeman,  14  Gray,  566.] 
for  going  at  large,  and  refuises  to  deliver  ^  Weston  v.  Carter,  1  Sid.  10;  1  Saund. 
them  to  the  owner,  on  demand,  unless  his  347,  n.  (1),  by  Williams;  McKinley  v. 
fees  and  tliose  of  the  field-driver  are  paid.  McGregor,  .3  Whart.  369 ;  Dover  v.  Raw- 
Polger  i;.  Hinckley,  5  Cush.  263  ;  Radkin  lings,  2  M.  &  Rob.  544. 
V.  Powell,  Cowp.  476.  And  a  tender  of  ^  Walton  v.  Kersop,  2  Wils.  354  ;  Bull. 
Buch  fees  and  costs  made  after  the  writ  of  N.  P.  54 ;  1  Saund.  347  a,  note  by  Wil- 
replevin  has  been  unconditionally  put  into  liams ;  Johnson  v.  Wollyer,  1  Stra.  507  ; 
the  hands  of  the  ofiicer  for  service,  will  not  Abercrombie  v.  Parkhurst,  2  B.  &  P.  480. 
be  sufficient  to  sustain  the  action.  Bills  y.  *  Ibid.;  Bully  thorpe  v.  Turner,  Willes, 
Vose,  7  Foster  (N.  H.)  212.  Xor  can  a  475;  Anon.  2  Mod.  199;  Williams  v. 
purchaser  maintain  replevin  for  goods  Welch,  5  Wend.  290 ;  Prosser  v.  Wood- 
purchased  that  formed  a  portion  of,  and  ward,  21  Wend.  205.  [*  If  an  action  of 
were  intermingled  with,  a  larger  quantity  replevin  is  defeated  solely  by  reason  of  ita 
of  the  same  kind  of  goods  owned  by  the  being  prematurely  commenced,  judgment 
vendor,  until  they  are  specifically  set  apart  for  a  return  of  the  goods  replevied  will  not 
or  designated  in  some  way  as  his.  Scud-  be  ordered.  Martin  v.  Bayley,  1  Allen, 
der  v.  Worster,  11  Cush.  573;  Dillingham  381.] 

V.  Smith,    30   Maine,   370  ;    Winslow  v.  ^  The  People  v.  Niagara,  C.  P.  2  Wend. 

Leonard,  24  Penn.  State  R.  14 ;  Jackson  644.     [The  plea  of  non  detinet  admits  the 

V.  Hale,  14  How.  (U.  S.)  525.     See  Neff  right  of  property  in  the  plaintifi^,  and  only 

V.  Thompson,  8  Barb.  213.]     [*  Replevin  puts  in  issue  the  detention  by  the  defend- 

does  not  lie  in  a  State  court  against  a  mar-  ant.     Ingalls    v.    Bulkley,    15    111.    224.] 

ehal   of  the   United    States   for  property  [*  Plaintiff' in  replevin  must  maintain  hia 

attached  by  him  on  mesne  process  from  a  case   on    the    strength  of  his   own  title. 

United  States  court  against  a  thii'd  person.  Johnson  v.  Neale,  6  Allen,  227.] 


bOO  LAW   OF  EVIDENCE.  [PART  IV. 

which  the  plaintiff  must  be  prepared  to  prove,  the  onus  prohandi  of 
this  issue  being  on  him  ;  for  if  the  former  issue  is  found  for  him, 
but  tlio  latter  is  either  not  found  at  all  or  is  found  for  the  defend- 
ant, the  plaintiff  cannot  have  judgment.^  And  where  the  issue  is 
on  the  plaintiff's  property,  his  right  to  the  possession,  at  the  time 
of  taking,  is  also  involved  in  the  issue.^ 

§  564.  An  avowry  or  cognizance  of  the  taking  is  ordinarily  ne- 
cessary, whenever  the  defendant  would  obtain  judgment  for  a 
return  of  the  goods,  thereby  making  himself  an  actor  in  the  suit, 
and  obliging  himself  to  make  out  a  good  title  in  all  respects. 
Where  the  avowry  or  cognizance  is  for  rent,  it  admits  tbat  the 
property  in  the  goods  was  in  the  plaintiff;  but  the  terms  of  the 
contract  or  tenancy  must  be  precisely  stated,  and  proved  as  laid, 
or  the  variance  will  be  fatal.'*  But  it  is  not  necessary  to  prove 
that  all  the  rent  was  due  which  is  alleged  ;  for  an  allegation  of 
two  years'  rent  in  arrear  will  be  supported  by  proof  of  one  only ; 
the  substance  of  the  allegation  being,  that  some  rent  was  in  arrear, 
and  not  the  precise  amount.^ 

§  5G5.  Under  the  issue  of  non  demisit  or  non  tenuity  which  is 
usually  pleaded  by  the  plaintiff,  to  an  avowry  for  rent  in  arrear, 
the  defendant  must  prove  a  demise,  an  agreement  for  one  being 
not  sufhcient ;  and  the  demise  proved  must  be  precisely  the  same 
as  that  stated  in  the  avowry.^  But  under  this  plea  the  plaintiff 
ordinarily  cannot  give  in  evidence  anything  which  amounts  to  a 
plea  of  nil  hahuit  in  tenementis  ;  for  as  the  tenant  is  not  permitted 
directly  to  deny  the  title  of  his  landlord  by  plea,  he  shall  not  be 
permitted  to  do  it  indirectly,  by  evidence  to  the  same  effect  under 
another  issue.^  But  where  the  defendant's  title  expired  before  the 
rent  became  due,  or  the  plaintiff  came  in  under  another  title,  and 

1  5  Com.  Dig.  757,  tit.  Pleader,  K.  12 ;  v.  Sayce,  4  Taunt.  320;  Phillpot  v.  Dob- 
Prcsgravc  v.  Saunders,  1  Salk.  5;  Bemus  binson,  6  Bing.  104  ;  3  M.  &  P.  320; 
V.  Beckman,  3  Wend.  667  ;  Sprague  v.  Cosscy  v.  Diggons,  2  B.  &  Aid.  ,546  ;  Da- 
Knecland,  12  Wend.  161  ;  Rogers  v  Ar-  vies  v.  Stacey,  12  Ad.  &  El.  506  ;  Tice  v. 
nold.  Id.  30;  Boynton  i'.  Page,  13  Wend.  Norton,  4  Wend.  663.  See  also  Jack  y. 
425  ;  CIcmson  v'  Davidson,  "s  Binn.  399  ;  Martin,  14  Wend.  507. 

Seibcrt  v.  McHenry,  6  Watts,  301  ;  Hunt  *  Forty  v.  Imber,  6  East,  434  ;  Cobb  v, 

V.  Chambers,  6  Penn.  Law  Journ.  82  ;  1  N.  Bryan,  3  B.  &  P.  348. 

Jersey  E.  620.  6  Dunk  v.  Hunter,  5  B.  &  Aid.  322. 

2  Redman  v.  Hendricks,  1  Sandf.  S.  C.  ^  Parry  v.  House,  Holt's  Cas.  489,  and 
R.  32  ;  Meritt  v.  Lyon,  3  Barb.  S.  C.  R.  note  by  the  reporter  ;  Alchorne  v.  Gomrae, 
110.  [*  An  allegation  of  right  of  posses-  2  Bing.  54;  Cooper  v.  Blandy,  1  Bing. 
Bion  is  proved  by  evidence  of  ownership  N.  C.  45.  The  rule  that  the  tenant  shall 
of  the  property,  where  no  special  right  of  not  deny  the  title  of  his  landlord  applies 
possession  is  shown  by  the  opposite  party,  only  where  there  is  a  tenancy  in  fact 
Cassel  V.  Western  Ci.,  12  Iowa,  47.]  Brown  v.  Dean,  3  Wend.  208. 

'  Clarke  v.  Davies,  7  Taunt.  72 ;  Brown 


PABT  IV.]  REPLEVIN.  601 

had  paid  rent  to  the  defendant  in  ignorance  of  the  defect  of  his 
title  to  demand  it,  or  has  been  evicted  by  the  lessor,  he  may  show 
this  under  the  plea  of  non  tenuit}  Proof  of  payment  of  rent  to 
the  avowant  is  always  prima  facie  evidence  that  the  title  is  in 
him.2 

§  566.  The  plea  of  riens  in  arrear  admits  the  demise  as  laid  in 
the  avowry,  putting  in  issue  only  the  fact  that  nothing  is  due  ; 
if,  therefore,  as  has  just  been  stated,  the  avowant  proves  that  any 
rent  is  due,  he  will  be  entitled  to  recover,  though  he  should  fail  to 
prove  that  all  is  due  whicli  is  alleged.'  Under  this  issue,  the 
plaintiff  may  prove  that  he  has  paid  the  rent  in  arrear  to  one  who 
had  a  superior  title,  such  as  a  prior  mortgagee  of  the  lessor,*  or  a 
prior  grantee  of  an  annuity  or  rent  charge.^ 

§  567.  The  allegation  in  the  cognizance,  that  the  conusor  made 
the  distress  as  bailiff  to  another,  is  traversable ;  but  it  may  be 
proved  by  evidence  of  a  subsequent  assent  to  the  distress,  by  the 
person  in  whose  behalf  it  was  made.^  If  it  were  made  by  one 
of  several  parceners,  joint-tenants,  or  tenants  in  common,  in  be- 
half of  all,  no  other  evidence  will  be  necessary,  the  title  itself 
giving  an  authority  in  law  to  each  one  to  distrain  for  all.'^  If 
the  conusor  justifies  as  bailiff  of  an  executor,  for  rent  due  to  the 
testator,  the  plea  will  be  supported  by  proof  of  a  distress  in  the 
name  of  the  testator,  and  by  his  previous  direction,  but  made 
after  his  death,  and  afterwards  assented  to  by  the  executor.* 

§  568.  Where  the  avowry  is  for  damage  feasant^  with  a  plea  of 
title  in  the  defendant  to  the  locus  in  quo,  which  is  traversed,  the 
evidence  will  be  the  same  as  under  the  like  plea  of  title  in  an 
action  of  trespass  quare  clausum  f regit. ^  And  in  general,  whatever 
right  is  pleaded,  the  plea  must  be  maintained  by  proof  of  as  large 

1  Gravenor  w.  'Woodhouso,  I  Binjj.  38;  *  Tavlorr.  Zamira,  6  Taunt.  524.     And 

England  v.  Slade,  4  T.  R.  682  ;  Rogers  i;.  see  Stubbs  v.  Parsons,  3  B.  &  iVld.   516; 

Pitcher, 5  Taunt.  209  ;  Feimeri'. Duplock,  Carter   v.   Carter,  5   Bing.   406;  Dyer  r. 

2  Bing.  10;  Duguan  v.  O'Conner,  1   Ilud-  Bowiev,  2  Bing.  94;  Alchome  v.  Gomme, 

son  &  Brooke,  459 ;  Hopcraft  v.  Kevs,  9  2  Bing.  54 ;  Sapsford  v.  FleUther,  4  T.  R. 

Bing.   613;    Bridges   v.   Smith,   5   Bing.  511. 

41 1.  8  Lamb  v.  Mills,  4  Mod.  378  ;  Trevilian 

■•'Johnson  v.  Mason.    1    Esp.    90,   91;  r.  Pine,  11  Mod.  112;  1  Saund,  347  c,  note 

Knight  V.  Bennett,  3  Bing.  361 ;  Mann  v.  (4),  hv  Williams. 

Lovejnv,  Rv.  &  M.  355.  "  Leigh  i-.  Shepherd,  2  B.  &  B.  465. 

8  ilill  r. 'Wright,  2  Esp.  669;  Cobb  v.  8  Whitehead   v.   Taylor,  10  Ad.    &  El. 

Bryan,  3  B.  &.  P.  348;  Bloomer  v.  Juhel,  210. 

8  Wend.  449  ;  Harrison  r.  Barnby,  5  T.  '  [An  avowry  justifying  the  taking  of 

R.    248 ;  Waltman   v.   Allison,    10  Barr,  the    cattle    damage   feasant    is    sufficient, 

464.  without    jurtifyiiig    the    detention.      Os' 

*  Johnson  v.  Jones,  9  Ad.  &  El.  809 ;  good     v.    Greene,    10    Foster    (N.    H.) 

Pope  I.  Biggs,  9  B.  &  C.  245.  210.] 


502  LAW   OF   EVIDENCE.  [PART  IV. 

a  right  as  is  alleged.  If  a  larger  right  be  proved,  it  will  not 
vitiate  ;  but  proof  of  a  more  limited  right  will  not  suffice.^  And 
if  an  absolute  right  is  pleaded,  and  the  right  proved  is  cou})led 
with  a  condition  or  limitation,  the  plea  is  not  supported ;  but 
evidence  of  an  additional  right,  founded  on  another  and  subse- 
quent consideration,  will  not  defeat  the  plea.^  If  issue  is  taken  on 
the  averment  that  the  cattle  distrained  were  levant  and  couchant, 
and  the  evidence  is,  that  only  part  of  them  were  so,  the  averment 
is  not  proved.^ 

§  569.  A  tender,  whether  of  rent  or  of  amends  for  damage  by 
cattle,  if  made  before  the  taking,  renders  the  distress  unlawful ; 
and  if  made  after  the  distress,  but  before  impounding,  it  renders 
the  detention  unlawful.*  But  it  must  appear  that  the  tender, 
if  not  made  to  the  party  himself,  was  made  to  a  person  entitled  to 
receive  the  money  in  his  behalf;  for  if  it  was  made  to  one  who  was 
not  his  receiver,  but  only  his  bailiff  to  make  the  distress,  or  to 
his  receiver's  agent,  it  is  not  sufficient.^  And  a  tender,  even  to 
a  receiver,  is  bad,  if  the  principal  be  present,  for  in  such  case  it 
should  have  been  made  to  tlie  principal.® 

§  570.  The  party  under  whom  the  defendant  makes  cognizance 
as  bailiff  is  not  a  competent  witness  for  the  defendant,  for  he  comes 
in  support  of  his  own  title.'^  But  he  is  competent  to  testify  for 
the  plaintiff,  and  therefore  the  plaintiff  cannot  give  in  evidence  his 
declarations.^  And  if  distinct  cognizances  are  made  for  the  same 
goods,  under  different  parties,  not  connected  in  interest,  but  one 
of  the  cognizances  is  abandoned  at  the  trial,  the  party  under  whom 
it  was  made  is  thereby  rendered  a  stranger  to  the  suit,  and  there- 
fore a  competent  witness.^  A  commoner,  who  claims  by  the  same 
custom  as  the  plaintiff,  is  not  a  competent  witness  in  support  of 
the  custom ;  but  where  the  plaintiff  claims  by  prescription,  a  person 
claiming  under  a  like  prescription  is  still  competent  to  testify  for 

1  Bull.  N.  P.  59,  60 ;  supra,  tit.  Pre-  ^  Pilkington's  case,  5  Co.  76 ;  Pimm  v. 
8CRIPTION,  §  544  ;  Johnson  v.  Thorough-  Grevill,  6  Esp.  95  ;  Browne  v.  Powell,  4 
good,  Hob.  64 ;  Bushwood  v.  Pond,  Cro,     Bing.  2.30. 

El.  722  ;  Bailiffs  of  Tewksbury  v.  Brick-         ^  Gilbert  on  Replevin,  p.  63  ;  Pilkington 

nell,  1  Taunt.  142.  v.  Hastings,  Cro.  El.  813. 

2  Bull.  N.  P.  59;  Gray's  case,  5  Co.  79;  ^  Golding  v.  Nias,  5  Esp.  272;  Upton 
Cro.  El.  405,  C.  S. ;  Lovelace  r.  Revnolds,  v.  Curtis,  1  Bing.  210. 

Cro.  El.  546  ;  Brook  v.  Willett,  2  H.  Bl.  8  jiart  v.  Horn,  2  Campb.  92. 

224.  9  King  v.  Baker,  2  Ad.  &  El.  333.    But 

3  Bull.  N.  P.  299  ;  2  Roll.  Abr.  706,  pi.  a  mere  offer  to  abandon  is  not  sufficient  to 
41 ;  1  Saund.  346  d,  note  by  Williams.  render    the  witness   competent.       Girdle- 

*  The  Six  Carpenters'  case,  8  Co.  146 ;     stone  v.  McGowran,  1  Cax.  &  Kir.  702. 
Pilkington's  case,  5  Co.  76. 


PART  IV.]  REPLEVIN.  503 

the  plaintiff;   for  his  interest  at  most  is  in  the  question  only,  and 
not  in  the  subject-matter  or  event  of  the  suit.^ 

1  Ante,   Vol.  1,  §§  389,  405.     [Where  the  actions  had  been  separately  tried ;  and 

several  actions  of  replevin  are  tried  togeth-  the  party  offering  such  witness  cannot  be 

er  by  order  of  the  court,  a  surety  in  one  required,  before  calling  him,  to  substitutes 

of  the  replevin  bonds  is  a  competent  wit-  new  surety  in  his  place  on  the  replevin  bond, 

ness  to  testify  in  those  cases  in  which  he  is  Kimball  v.  Thompson,  4  Cush.  441.J 
net  interested,  in  the  same  manner  as  if 


■^04 


LAW   OF  EVIDENCE. 


[part  IV 


SEDUCTION.! 

|*§  571.  Plaintiff  must  prove  fact  of  seduction,  and  that  person  seduced  was  his  Be^ 

vant. 

572.  Express  contract  of  service  not  necessary ;  amount  and  value  of  servicea  not 

important. 

573.  Wliat  is  sufficient  proof  of  relation  of  servant. 

574.  Action  cannot  be  maintained  for  injury  to  daughter  in  another's  service  at 

the  time,  though  intending  to  return  to  plaintiff. 

575.  Relation  of  servant  must  e.xist  at  time  of  seduction. 

576.  Where  daughter  is  a  minor,  and  under  father's  control,  service  will  be  pre- 

sumed. 

577.  Party  seduced  competent  witness  to  prove  the  fact.    Her  character  may  be 

impeached  by  general  evidence. 
577  a.  Mere  criminal  connection  by  defendant  with  plaintiff's  servant  not  sufficient 
without  proof  of  some  injury  to  plaintiff. 

578.  Misconduct  of  plaintiff  a  defence. 

579.  Damages  allowed  for  injury  to  plaintiff's  feelings.] 


§  571.  In  an  action  for  seduction,  the  plaintiff  must  be  pre- 
pared to  prove,  (1.)  that  the  person  seduced  was  his  servant;  and 
(2.)  the  fact  of  seduction  ;  both  these  points  being  put  in  issue  by 
the  plea  of  not  guilty  .^ 


^  For  the  evidence  in  an  action  for  crim- 
inal conversation  with  the  plaintiff's  wife, 
see  supra,  tit.  Adultery,  and  tit.  Mar- 
riage. 

2  Holloway  v.  Abell,  7  C.  &  P.  528. 
[*  "  The  defendant,  by  limiting  his  plead- 
ing to  the  general  issue,  will,  as  it  seems, 
be  held  to  admit  that  the  relationship  of 
master  and  servant  subsisted  as  alleged  in 
the  declaration.    Torrence  v.  Gibbens,  5  Q. 

B.  297  ;  1  D.  &  Mer.  226,  S.  C,  overruling 
Holloway  v.  Abell,  7  C.  &  P.  528 ;  but 
still  the  plaintiff  will  be  bound  under  that 
plea  to  establish,  not  only  the  fact  of  se- 
duction, but  the  consequent  loss  of  service, 
without  proof  of  which  the  action  cannot 
be  mainUiined.  Eager  v.  Grimwood,  1  Ex. 
R.  61  ;  Davies  v.  Williams,  10  Q.  B.  725." 
Taylor's  Evidence,  285.]  It  has  been  dis- 
puted, whether  this  action  should  be  in  the 
form  of  trespass  or  case ;  but  it  is  now 
settled,  that  it  may  well  be  brought  in 
either  form.  Chamberlain  v.  Hazlewood, 
5  M.  &  W.  515 ;  3  Jur.  1079  ;  7  Dowl.  P. 

C.  816,  S.  C. ;  Parker  v.  Bailey,  4  D.  &  R. 


215.  See  supra,  tit.  Case,  §  226;  Moran 
V.  Dawes,  4Cowen,  412;  Parker  y.  Elliott, 
6  Munf.  587. 

The  form  of  the  declaration  in  case  is 
as  follows  :  "For  that  the  said  (defendant) 

on and  on  divers  days  and  times  after 

that  day  and  before  the  commencement  of 
this  suit,  debauched  and  carnally  knew  one 
E.  F.,  she  then  being  the  [daughter  and] 
servant  of  the  plaintiff;  whereby  the  said 
E.  F.  became  sick  and  pregnant  with  child, 
and  so  continued  for  a  long  time,  to  wit, 

until   the day  of when   she   was 

delivered  of  the  child  of  which  she  was  so 
pregnant ;  by  means  of  all  which  the  said 
E.  F.  was  unable  to  perform  the  business 
of  the  plaintiff,  being  her  [father  and]  mas- 
ter aforesaid,  from  the  day  first  aforesaid 
hitherto,  and  the  plaintiff  has  wholly  lost 
her  service,  and  been  put  to  great  expenses 
for  her  delivery,  cure,  and  nursing.  To 
the  damage,"  &c. 

The  form  in  Trepass  is  thus  :  "  For  that 

the  said  [defendant]  on and  on  divers 

days  and  times  after  that  day  and  before 


PART  IV.] 


SEDUCTION. 


505 


§  572.  (1.)  Though  the  relation  of  servant  to  the  plaintifif  is  in- 
dispensable to  the  maintenance  of  this  action,  yet  it  is  not  neces- 
sary to  prove  an  express  contract  of  service  ;  ^  nor  is  the  amount  or 
value  of  the  service  actually  performed  of  any  importance,  if  the 
plaintiff  had  the  right  to  command  the  immediate  service,  or 
personal  attendance  of  the  party  at  the  time  of  the  seduction.^ 
If  this  right  existed,  it  is  not  material  whether  the  servant  was 
seduced  while  at  home,  or  abroad  on  a  visit.  Nor  is  it  material 
whether  the  servant  was  a  minor  or  of  full  age;  nor  whether 
the  relation  of  master  and  servant  still  continues,  it  being 
sufficient  if  it  existed  when  the  act  of  seduction  was  committed.^ 
Neither  does  the  concurrent  existence  of  any  other  relation, 
Buch  as  that  of  parent  or  other  relative,  afifect  the  action  ;  for  such 
relation  will  not  aid  to  support  the  action,  if  the  party  seduced 
was  actually  emancipated  and  free  from  the  control  of  the  plaintiff 
when  the  injury  was  committed.* 

§  573.  It  has  accordingly  been  held,  that  this  part  of  the  issue 
is  mainta^ied  by  evidence  that  the  party  seduced  was  the  adopted 
child  of  the  plaintiif,^  or  his  niece,^  or  his  daughter,"  as  well  as 


the  commencement  of  this  suit,  with  force 
and  arms  assaulted  one  E.  F.,  she  then 
bcinpj  the  [daii!.'htcr  and]  ser^•ant  of  the 
plaintirt',  and  tiicn  debauciicd  and  carnally 
knew  the  said  E.  F.  whereby  |herc  pro- 
ceed as  in  the  preceding  form,  to  the  end, 
concludint?  thus],  and  other  wroni^s  to  the 
plaintiff  tlie  sajd  [defendant]  tlien  and 
there  did,  against  the  peace.  To  the  dam- 
age," &c. 

Where  the  injury  was  done  in  the  house 
of  the  father  or  master,  the  remedy  may 
be  pursued  in  trespass  qnnrechtmuin  freijit, 
the  seduction  beinj^  laid  in  a<;!;ravation  of 
the  wrong.     1  Chittv  on  Plead.  1-28. 

1  Bennett  v.  Allcott,  2  T.  R.  166.  [It 
is  suflicient  if  the  rcl.ition  of  master  and 
servant  exist  constructively.  Mulvehall  v. 
Mil  ward,  1  Kernan  (N.  t.)  34-3.]  [*To 
constitute  the  constructive  relation,  the 
master  must  have  the  right  to  command 
the  service  of  the  servant.  The  relation 
exists  constructively  between  a  father  and 
his  infant  daughter,  although  the  latter  is 
in  the  ser^'ice  of  another,  provided  the  for- 
mer has  a  right  to  reclaim  her  services  at 
any  time.  But  a  step-father  is  not  as  such 
entitled  to  the  .services  of  his  step-daughter, 
and  is  not  liable  for  her  support.  Bartley 
V.  Richtmyer,  4  N.  Y.  38.  See  this  case 
also  for  a  consideration  of  tlje  action  of  se- 
duction generally,  the  cases  relating  thereto 
being  fully  cited  and  eummcnted  on.] 

»  Maunder  v.  Venn,  1  M.  &  Malk.  323. 


'  Though  the  father  turned  the  daugh- 
ter out  of  doors,  upon  discovery  of  her 
pregnancy,  he  may  still  maintain  this  ac- 
tion. 3  "Stcph.  N.  P.  23.53;  [Kcndrick  v. 
McCrary,  1 1  Geo.  603.  If  a  step-daughter 
leave  the  house  of  her  stepfather,  and  is 
seduced  while  in  the  service  of  a  third 
person,  the  step-father  cannot  maintain 
his  action,  although  before  the  birth  of  the 
child  she  returns  to  his  house,  engages  in 
his  service,  and  is  there  nursed  and  attend- 
ed (luring  her  confinement.  Bartley  v. 
Richtmyer,  4  Comst.  38.]  [*  In  Lipe  r. 
Eisenler,  32  N.  Y.  229,  it  was  held  that 
where  a  daughter  twenty-nine  years  of 
age  resided  with  her  father,  and  by  a  tacit 
understanding  continued  to  perform  cer- 
tain domestic  services,  and  was  supported 
by  him  with  food  and  clothing,  the  rela- 
tion of  master  and  servant  existed.  See 
Campbell's,  J.,  dissenting  opinion.  lb. 
729.] 

*  2  Selw.  N.  P.  110.3,  1104  (10th 
edit.) ;  3  Steph.  N.  P.  23.51  -2353;  [Rob- 
erts V.  Connelly,  14  Ala.  23.5.] 

6  Invin  V.  Dearman,  1 1  East,  23.  Or 
stepdaughter.  Bartley  v.  Richtmyer,  2 
Barb.  S.  C.  R.  182;  [S.  C.  4  Comst.  38.] 
And  see  Ingersoll  v.  Jones,  5  Barb.  S.  C. 
R.  661  ;  [Kellev  i-.  Donnelly,  5  Md.  211.] 

6  Edmondson  v.  Machell,  2  T.  R.  4; 
Manvelle  v.  Thompson,  2  C.  &  P.  303. 

7  2  Selw.  N.  P.  1103;  Bennett  v.  Al- 
cott.  2  T.  R.  166. 


60b  LAW   OF  EVIDENCE.  [PART  IV. 

where  she  was  merely  his  hired  servant,^  it  also  appearing  that 
she  was  actually  subject  to  his  commands,  and  was  bound  to 
perform  such  offices  of  service  or  of  kindness  and  duty  as  were 
usually  performed  by  persons  in  that  relation,  and  in  similar  rank 
in  society.  So  it  is  held  sufficient,  if  any  acts  of  service  or  of 
duty  are  performed,  though  the  party  were  a  married  woman, 
separated  from  her  husband,  and  had  returned  to  live  with  tho 
plaintiff,  who  is  her  father.^  The  smallest  degree  of  service  will 
suffice,  such  as  presiding  at  the  tea-table,^  even  though  she  slept 
in  another  house,  or  was  absent  on  a  visit,  if  she  was  still  under 
the  plaintiff"'s  control.^  But  if  she  was  not  in  his  service  in  any 
of  these  modes,  the  father  cannot  maintain  this  action,  though  he 
received  part  of  her  wages,  and  she  was  under  age.^  If  the  de- 
fendant himself  hired  her  as  his  own  servant,  with  the  fraudulent 
intent  to  obtain  possession  of  her  person  and  seduce  her,  this  is  no 
bar  to  the  father's  action,  though  she  was  of  full  age,  provided 
she  was  in  her  father's  family  at  the  time  of  the  hiring ;  for 
in  such  case,  the  hiring  being  fraudulent,  the  relation  of  master 
and  servant  was  never  contracted  between  them.^ 

§  574,    On  the  other  hand,  it  has  been  decided,  that  where  the 
daughter  was  in  the  domestic  service  of  another  person  at  the 

1  Fores  v.  "Wilson,  1  Peake,  55.  16.     Wliero,  however,  the  daughter  of  the 

2  Harper  v.  Luffkin,  7  B.  &  C.  387.  plaintiff  was  employed  by  the  defendant  as 
This  action  has  also  been  held  to  lie  in  an  outdoor  farm-servant  a  part  of  tlie  year, 
favorof  a  widowed  mother,  living  with  her  being  absent  dining  the  usual  working- 
daughter  who  was  seduced ;  tlie  daughter  hours  from  her  father's  house,  where  she 
being  of  full  age  and  owning  the  household  passed  the  remainder  of  her  time,  sleeping 
establishment,  but  performing  acts  of  ser-  there,  and  assisting  in  the  household  duties, 
vice  to  the  mother  and  family.  Villc-  it  was  held  that  these  facts  constituted  a 
piguc  V.  Shular,  2  Strobh.  462.  [*  But  sufficient  service  to  the  father  to  support 
see  Manly  y.  Field,  7  C.  B.  (N.  S.)  96;  S.  an  action  at  his  suit  for  the  seduction. 
C.  6  Jur.  N.  S.  300.  Where  it  is  held  Kist  j;.  Faux,  4  B.  &  S.  409;  10  Jur.  N. 
that  where  a  daughter  rented  a  house,  and  S.  202.] 

carried  on  the  business  of  a  milliner  at  tho  8  Qj,rr  v.  Clarke,  2  Chitty,  261,  per  Ab- 
timo  of  her  seduction,  the  circumstances  bott,  C.  J. ;  Blaymire  v.  Ilayley,  6  M.  & 
of  her  mother  and   the  younger  branches  W.  56  ;  Manvcll  v.  Thomjison,  2  C.  &  P. 
of  the  family  residing  with  her,  and  re-  304;  [Knight  v.  Wilcox,  15  Barb.  279.] 
ceiving  part  of  their  support  from  the  pro-  *  Mann  v.  Barrett,  6  Esp.  32  ;  Ilolloway 
ceeds  of  her  business    (the  fother  lodging  v.  Abell,  6  C.  &  P.  528.     And  see  Anon, 
elsewhere),  did  not  constitute  such  services  1   Smith,  333;  Harris  r.  Butler,  2  M.  & 
as   to   entitle   tho  father  to  maintain  the  W.  542 ;  Martin  v.  Payne,  9  Johns.  387 ; 
action.     Where  the  daughter  did  not  re-  Moran  r.  Dawes,  4  Cowen,  412  ;  Nickcrson 
side  in  the   house  with    her   parent,  but  v.  Stryker,  10  Johns.  115;    Hornkcth   v. 
being   a   domestic  servant,  living  in   the  Barr,  8  S.  &  R.  36.     But  see  Boyd  u.  Bird, 
house  of  her  master,  though  with  the  per-  8  Blackf.  113.     [See  Griffiths  c.  Teetgen, 
mission  of  her  master  she  had  been  in  the  28  Eng.  Law  &  Eq.  R.  371.] 
habit,  during  any  leisure  time,  of  assisting  ^  c.jir   v.   Clarke,  2   Chitty,  260 ;  Pos- 
in  the  work  by  which  her  parent  earned  a  tlethwaite  v.  Parkcs,  3  Burr.  1878;  Grin- 
livelihood,  it  was  held  the  parent  could  not  nell  v.  Wells,i?  Man.  &  Gr.  1033. 
maintain  an  action  for  the  daughter's  se-  ^  Speight  v.  Oliviera,  2  Stark.  493. 
ductioD.     Thompson  v.  Ross,  5  H.  &.  N. 


PART  IV.]  SEDUCTION.  507 

time  of  the  injury,  though  with  the  intent  to  return  to  her  father's 
house  as  soon  as  she  should  quit  that  service,  unless  she  should  go 
into  another,  the  action  cannot  be  maintained.^  Much  less  can  it 
bo  maintained  where  she  had  no  such  intention  of  returning.^ 

§  675.  Though  the  slightest  proof  of  the  relation  of  muster  and 
servant  will  suffice,  yet,  as  the  action  is  founded  upon  that  rela- 
tion, it  must  be  shown  to  have  existed  at  the  timc.3  Therefore  it 
has  been  held,  that  where  the  seduction  took  place  in  the  lifetime 
of  the  father,  the  action  could  not  be  maintained  by  the  mother, 
after  his  decease,  though  the  expenses  of  the  daughter's  confine- 
ment fell  upon  the  mother."*  Nor  can  the  mother  maintain  the 
action  in  any  case,  without  proof  of  service.^ 

§  576.  Where  the  daughter  was  a  minor,  and  under  the  father's 
control,  proof  of  this  alone  will  suffice  to  maintain  this  part  of  the 
issue,  service  in  that  case  being  presumed  ;  but  where  she  was  of 
full  age,  the  plaintiff  ought  to  be  provided  with  some  additional 
evidence  of  service  in  fact,  though,  as  has  already  been  stated, 
Blight  evidence  will  suffice.^ 

§  577.  (2.)  The  fact  of  seduction  may  be  proved  by  the  testi- 
mony of  the  person  herself;  but  it  is  not  necessary  to  produce  her, 
though  the  withholding  of  her  is  open  to  observation .7  Her  gen- 
eral character  for  chastity  is  considered  to  be  involved  in  the 
issue,  and  may  therefore  be  impeached  by  the  defendant  by  gen- 
eral evidence,  and  supported  by  the  plaintiff  in  the  like  manner  ; 
but  she  cannot  be  asked,  whether  she  had  not  been  previously 
criminal  with  other  men.8      But  though  the  defendant  cannot 

1  Blaymirc  v.  Hayloy,  6  M.  &  W.  55.  ^  Sattcrthwaito  v.   Dowhurst,  4  Doug. 

And  see  Postlcthwaite  v.  Parkes,  3  Burr.  315;  5  East, 47,  n.              ,„  ,  u        hk. 

fsTS;  Davies  v.  Williams,  10  Ad.  &  El.  «  Nicklcson  v.  Stryker,  10  Johns.  115; 

725    N     S  •  fDain   t.  Wicoff,  3    Seldcn  Martin  v.  Payne.  9  Johns.  387  ;  Hornkcth 

\t  'y  {  191  'l  V.  Barr,  8  S.  &  K.  36  ;  Logan  v.  Murray, 

^2  Dean  v.  Peel,  5  East,  45;  Anon.,  1  6  S.  &  U.   177;  Vanhorn  ..  freeman    1 

Smith  333  Hal.st.  322  ;  Mercer  v.  Walni-ley,  .o   Harr. 

8  The  alie-ations  of  her  relation  of  ser-  &  Johns.  27  ;  [Kendrick  v.   MeCrary    11 

yant,  axMilho  per  quod  serrUium  amisit  aro  Geo.   603;    Kcllcy   v.    Donnelly,   5    Md. 

material;    and  tiic  omission  of  them  will  211.]                             ,.     tt  i  .    /-■       aki  . 

not  l.e  supplied  by  an  averment  that  the  ^  Revil     ..    Satterfit    Ho  t's  Cas.  451 ; 

plaintiff,   her   father,   bcinK    of    sufficient  Cock  r.  Wortham   i  Stra.  10o4. 

Eitv,  was    compelled    to  ."support    her.  «  Bamfield  ..  Massey,  1   Campb    460; 

GrinncU   v.   Wells,   7  Man.  &  Gr.  1034.  Dodd  ..  Nqrris,  3  Campb.  519.     Bate  v. 

[.'Trsustain  an  iiction  for  seduction,  it  Hill,  1  C.  &  P.  109;  ant.,  Vol.  1,  §§54 

is  necessary   to  show  something  like  the  458.      And   sec   Magrath    v.   Browne,   1 

rektion   of  master  and  servant!  however  Armstr.  &  Macartn.   136  ;    Carpenter  v. 

Siglt  the  degree.     Manly  ..  Field.  7  C.  Wahl,  11  Ad.  &  El.  803.     Whej"  «he  had 

B  N   S  96  1  been   abandoned   by  her  seducer,  and  in 

*  Lof^an   r    Murray    6S.    &R.  175;  consequence  of  that  abandonment  became 

[George  t".  Van  Horn,  9  Barb.  523.]     But  ill,  whereby  her  services  were  lost  to  the 

Le  Coon  V.  Moffet,  2  Penuingt.  583.  father,  it  has  been  contended  that  for  such 


608  LAW   OF  EVIDENCE.  [PART  IV. 

interrogate  the  party  herself  as  to  acts  of  unchastity  with  others, 
yet  he  may  call  those  other  persons  to  testify  their  own  criminal 
mtercourse  with  her,  and  the  time  and  place ;  but  notwithstand- 
ing this  evidence,  if  the  jury  are  satisfied,  from  the  whole  evi- 
dence, that  the  defendant  was  the  father  of  the  child,  their  verdict 
must  be  for  the  plaintiff,  though  perhaps  for  diminished  damages.^ 

§  577  a.  The  mere  fact  that  the  defendant  has  had  a  criminal 
connection  with  the  plaintiff's  servant  is  not  alone  sufficient  to 
maintain  this  action,  without  proof  of  some  injury  thence  resulting 
to  the  plaintiff;  for  otlierwise,  it  is  in  principle  nothing  but  the 
case  of  an  assault  upon  the  servant  without  damage  to  the  master; 
and  if  such  connection  were  held  to  be  a  loss  of  service,  it  is  diffi- 
cult, as  a  learned  judge  has  remarked,  to  see  where  it  would  stop. 
Therefore,  where  a  parent  brouglit  an  action  for  the  seduction  of 
his  daughter,  then  in  his  service,  and  it  was  proved  that  the  de- 
fendant had  had  connection  with  her,  and  also  that  she  had  been 
delivered  of  a  child,  but  the  jury  found  that  the  child  was  not  the 
defendant's,  it  was  held  that  the  jury  were  rightly  instructed  to 
return  a  verdict  for  the  defendant,  there  being  no  loss  of  service 
from  his  act.^ 

§  578.  In  the  defence  of  this  action,  under  the  general  issue,  the 
defendant  may  not  only  show  that  the  person  seduced  was  not  the 
servant  of  the  plaintiff,^  but  he  may  also  prove,  in  bar  of  the 

a  loss  of  service  an  action  might  bo  main-  [*Btit  evidence  of  particular  acts  of  im- 

tained ;  but  the  particular  case  was  dis-  morality  or  indecorum,  as  well  as  proof 

posed  of  on  another  point.     Boyle  v.  Bran-  of  general  bad  character,  must  be  confined 

don,  13  M.  &  W.  738.     [But  the  plaintiff  to  what  occurred  preinomlij  to-  the  defend- 

cannot  give  evidence  of  the  general  good  ant's  misconduct.     Taylor  on    Evidence, 

character   of  the   person   seduced    in    the  327  ;   Elsam  v.  Fawcett,  2  Esp.  562.] 
absence  of  any  impeaching  testimony  by         2  Eager   v.   Grimwood,   34    Legal  Obs. 

the  defence.     Haynes  v.  Sinclair,  23*  Vt.  360;  1  Exch.   R.  61,  S.  C.     [*  Bartiey  v 

108.]     [*  Taylor  says  :  "  In  modern  times  Riciitmyer,  4  N.  Y.  38.     The  loss  of  ser 

it  has  frequently  been  held,  that  in  actions  vice  must  be  direct  and  immediate.     Dam 

for  seduction,  and  on  indictments  for  rape,  ages  resulting  as  a  remote  consecpicnce  of 

the   principal   female   witness    might    l)e  the  seduction,  as  sickness  through  fear  of 

cross-examined,  with  the  view  of  showing  exposure,  is  not  sufficient.     Knight  v.  Wil 

that  she  had  previously  been  guilty  of  in-  cox,  14  N.  Y.  413.     But  this  action  wil] 

continence  with   the   defendant,   or  even  lie   against   a   defendant   for   debauching 

with  other  men,  or  with  some  particular  plaintiff's  servant,  and  communicating  to 

person  named ;  and  when  she  has  denied  her  a  venereal  disease  by  which  she  waa 

tlie    facts   imputed,   witnesses   have   been  made  sick,   and  unable  to  lahor.     White 

called  for  the  purposes  of  contradiction."  v.  Nellis,  31  N.  Y.  40.5.]     [It  is  no  defence 

R.  V.  Robins,  2  M.  &  Rob.  512,  per  Coler-  to  an  action  for  seduction,  that  the  offence 

idge  and  Erskine,  Js. ;  Verry  v.  Watkins,  7  was  rape,  and  not  seduction.     Tiiis  action 

C.  &  P.  308,  per  Alderson,  B. ;  Andrews  will  lie,  although  trespass  vi  et  armis  might 

V.  Askey,  8  C.  &  F.  7,  per  Tindal,  C.  J.,  also  bo  sustained.    Fnrman  v.  Applegate, 

and  other  cases  cited  by  Taylor.     Taylor  3  Zabr.  28.] 

on  Evidence,  1164.]  8  HoUoway  v.  Abell.  7  C.  &  P.  528. 

1  Verry  v.   Watkins,   7   C.   &  P.  308. 


PART  IV.] 


SEDUCTION. 


509 


action,  that  the  plaintiff  was  guilty  of  gross  misconduct,  in  per- 
mitting the  defendant  to  visit  his  daughter  as  a  suitor,  after  he 
knew  that  he  was  a  married  man,  and  had  received  a  caution 
against  admitting  him  into  his  family,  or  in  otherwise  conniving  at 
her  criminal  intercourse  with  hira.^ 

§  579.  The  damages  in  this  action  are  given  not  only  for  the  loss 
of  service,  but  also  for  all  that  the  plaintiff  can  feel  from  the 
nature  of  the  injury.  Therefore,  if  the  plaintiff  is  the  parent  of 
the  seduced,  the  jury  may  consider  his  loss  of  the  comfort  as  well 
as  the  service  of  the  daughter,  in  whose  virtue  he  can  feel  no  con- 
solation, and  his  anxiety  as  the  parent  of  other  children,  whose 
morals  may  be  corrupted  by  her  example.^  The  plaintiff  may 
give  evidence  of  the  terms  on  which  the  defendant  visited  his 
house,  and  that  he  was  paying  his  addresses  upon  the  promise  or 
with  intentions  of  marriage;^  and  the  defendant,  on  the  other 
hand,  may  give  evidence  not  only  of  the  loose  character  and  con- 
duct of  the  dau'glitcr,  but  also,  as  it  seems,  of  the  profligate  princi- 
ples and  dissolute  habits  of  the  plaintiff  himself* 


1  Ktdilie  V.  Scoolt,  1  Peake,  240 ;  Aker- 
Iv  r.  Haines,  2  Caines,  292;  Seagcr  v. 
Slin-riTliiiuI.  IcL  219. 

-  Ik-dlonl  V.  McKowl.  .3  Esp.  119. 
f*  Daiii  r.  Wvcoff,  7  N  Y.  191.  Lip<!  v. 
EisenlLT.I,.J2N.  Y.  229.]  Ami  see  Tul- 
lid;;c  c.  Wuilc,  3  Wils.  18;  Andrews  v. 
Askev,  8  C.  &  P.  7  ;  Irwin  v.  Denrman, 
11  Eiist,  24;  Grinnell  i'.  Wells,  8  Seott, 
N.  H.  741  ;  7  M.  &  Gr.  10.3.3  ;  IKni},'ht  v. 
Wilcox,  18  Burl).  212.  Hnt  he  cannot 
recover  tlie  probable  exjiense  of  siip]>orting 
the  ille^;itin»atc  child,  of  which  his  dau;j:h- 
terhtid  been  delivered.  Havnes  »  Sinclair, 
23  Vt.  108.  He  may  show  the  character 
of  his  own  family  and  the  pecuniary  cir- 
cumstances of  the  defendant.  JNIeAulay 
V.  Birkhead,  13  Ircd.  28.  And  daniapes 
in  such  a  case  for  the  injury  to  the  parents' 
feelin;;s  may  be  recovered,  althou;;h  there 
is  no  sij)i\rate  averment  thereof  in  the 
declaration;  such  damages  beinj;  a  natu- 
ral consccjucncc  of  the  principal  injury. 
Phillips  I'.  Hoyle,  4  Gray,  568.]  (♦The 
rule  as  to  damage  is  the  same  whether 
the  dau;:!iter  be  a  minor  or  of  full  age. 
Lipo  V.  Eisenlerd,  32  N.  Y.  229.] 


»  Elliot  V.  Nicklin,  5  Price,  641  ;  Tul- 
lidtre  I'.  Wade,  3  Wils.  18;  Browncll  i;. 
McKwen,  .'5  Denio,  367 ;  Capron  v.  Bal- 
mon<l,  3  Steph.  N.  P.  2356 ;  Watson  v. 
Bay  less,  and  Murfratroyd  v.  Murfratrovd, 
cited  2  Stark,  on  Evid.'732,  note  (t)  ;  $«- 
vra,  §  269  ;  [ I'healing  v.  Kcnderdine,  20 
Venn.  State  H.  354  ;  but  the  jury  must  not 
award  to  the  father  any  part  of  the  dam- 
af^es  wliich  belong  to  the  daughter  by  rea- 
son of  the  breach  of  contract  of  marriage, 
lb.]  But  see  Dodd  v.  Norris,  3  Canipb. 
519,  contra;  [Haynes  v.  Sinclair,  23  Vt. 
108.]  [*  Proof  oi' the  defendant's  circum- 
stances is  inadmissible.  Dain  v.  Wycoff. 
7  N.  Y.  191.] 

*  Doddi;.  Xorris,  3Campb.  519.  [»Held 
otherwise  in  Dain  i-.  Wycoff,  7  N.  Y.  191 
(1852).]  But  an  offer  of  marriage,  after 
the  seduction,  cannot  be  shown  in  mitiga- 
tion of  damages.  IngersoU  v.  Jones,  5 
Barb.  S.  C.  K.  661.  [A  subsequent  mar- 
riage of  the  daughter  with  the  seducer,  and 
an  acquittid  of  the  latter  on  an  indictment 
for  the  seduction,  may  be  shown  in  mitiga- 
tion of  damages.  Eichar  i;.  Kistlcr,  14 
Penn.  State  R.  282.] 


510  LAW   OF  EVIDf:NCE.  [PART  IV. 


SHERIFF. 

[•  §  580.  Sheriff  is  responsible  for  all  the  acts  of  his  under-officers  in  execntion  of  pro* 

cess. 

581.  Causes  of  action  against  sheriffs  enumerated. 

582.  Where  cause  of  action  is  founded  on  misconduct  of  inferior  officer,  his  con- 

nection with  sheriff  must  be  proved.     Proper  evidence. 

583.  Admissions  of  deputy  tending  to  charge  himself  receivable  in  evidence  against 

the  sheriff,  whenever  deputy  is  bound  by  the  record.     Not  othenvise  unless 
a  part  of  the  res  gestce. 

584.  Where  action  is  for  not  serving  mesne  process,  plaintiff  must  prove  the  cause  of 

action,  issuing  of  process,  delivery  of  it  to  officer,  his  ability  to  execute  it,  and 
some  neglect. 

585.  Defences  to  such  actions. 

586.  In  action  for  taking  insufficient  pledges  or  bail,  slight  proof  by  plaintiff  suffi- 

cient, the  fact  of  their  sufficiency  being  best  known  to  defendant. 

587.  In  action  for  not  paying  over  money  levied  and  collected,  plaintiff  must  prove 

receipt  of  money  by  officer  and  demand,  when  demand  is  requisite. 

588.  Defences  to  this  action. 

589.  In  an  action  for  an  escape,  plaintiff's  case  how  proved. 

590.  In  an  action  for  a  voluntary  escape,  party  escaping  a  competent  witness  for 

either  party. 

591.  Defences  to  this  action. 

592.  In  action  for  false  return,  slight  evidence  of  falsity  of  return  will  make  prima 
facie  case. 

593.  Defences  to  this  action. 

594.  When  there  are  doubts  as  to  the  debtor's  property  in  the  goods  which  officer 

is  directed  to  seize,  he  may  refuse  to  act  until  indemnified  by  creditor. 

595.  In  action  for  refusing  to  take  bail,  sufficient  for  plaintiff  to  prove  the  arrest, 

offer  of  sufficient  bail,  and  the  commitment. 

596.  Sheriff  liable  for  extortion.     Points  to  be  proved  by  plaintiff. 

597.  In  an   action  for  taking  the  goods  of  plaintiff,  plaintiff's   title  how  im- 

peached. 

598.  Who  are  interested  witnesses,  and  how  far  they  are  competent. 

599.  Damages  in  general  commensurate  with  the  extent  of  the  injury.    Excep- 

tions.] 

§  580.  The  law  of  evidence  in  actions  against  any  officers,  for 
misconduct  in  regard  to  civil  process  in  their  hands  for  service, 
will  be  treated  under  this  head  ;  the  sheriff  being  the  officer  prin- 
cipally concerned  in  that  duty.     He  is  identified,  in  contemplation 


PART  IV.]  SHERIFF.  511 

of  law,  with  all  his  under-officers,  and  is  directly  responsible,  in 
the  first  instance,  for  all  their  acts  done  in  the  execution  of  pro- 
cess.^ 

§  581.  Actions  against  sheriffs  are  either  for  nonfeasance,  or 
mere  omission  of  duty ;  such  as,  (1.)  not  serving  process ;  (2.) 
taking  insufficient  pledges  or  bail ;  (3.)  not  paying  over  money 
levied  or  collected ;  or,  for  misfeasance,  or  improperly  doing  a 
lawful  act ;  such  as,  (4.)  suffering  the  party  arrested  to  escape ; 
(5.)  making  a  false  return  ;  or,  for  malfeasance,  or  doing  an  un- 
lawful act,  under  color  of  process ;  sucli  as,  (6.)  extortion ;  (7.) 
seizing  the  goods  of  one  who  is  a  stranger  to  the  process.  These 
will  be  considered  briefly  in  their  order. 

§  582.  Where  the  action  for  any  of  these  causes  is  founded  on 
the  misconduct  of  an  inferior  officer,  acting  under  the  sheriff,  his 
connection  with  the  sheriff  must  be  proved.  If  he  is  an  under- 
sheriff  or  deputy,  recognized  by  statute  as  a  public  officer,  it  will 
be  sufficient,  prima  facie,  to  show  that  he  has  acted  publicly  and 
notoriously  in  that  character.^  But  if  he  is  only  a  private  agent 
or  servant  of  the  sheriff,  other  evidence  is  necessary.  In  these 
cases,  a  warrant  is  delivered  to  the  bailiff,  authorizing  him  to 
serve  the  process  in  question  ;  and  as  this  is  the  most  satisfactory 
evidence  of  his  appointment,  it  is  expedient  to  produce  it,  or 
to  establish  its  loss,  so  as  to  admit  secondary  evidence  of  its 
existence  and  contents.^  A  paper,  purporting  to  be  a  copy  of 
the  warrant  left  with  the  debtor  by  the  bailiff,  is  not  sufficient,  it 
being  the  mere  act  of  the  bailiff,  and  of  the  nature  of  hearsay ; 
nor  will  it  suffice  to  produce  a  general  bond  of  indemnity,  given 
by  the  bailiff  to  the  sheriff;  for  this  does  not  make  him  the  sher- 

1  Saunderson  v.  Baker,  2  W.  B.  L.  832 ;  1  Pick.  62,  it  is  held  that  the  party  injured 

Jones  V.  Pcrchard,  2  Esp.  507  ;  Smart  v.  must  elect  which  to  sue,  regardinj,'  them  as 

Hutton,  2  N.  &  M.  426  ;  8  Ad.  &  El.  568,  master  and  servant.     They  are  held  to  be 

note,  S.  C. ;  Anon.  Lofft,  81  ;  Ackworth  joint  trespassers,  however,  in  Watcrhury  v. 

V.  Kempc,  1  Doug.  40  ;  Woodman  v.  Gist,  Westcrvelt,  9  N.  Y.  604,  where  the  cases 

8  C.  &  P.  213;  Watson  i-.  Todd,  5  Miiss.  arc    fully   examined,    and   the   dissenting 

271  ;  Draper   r.   Arnold,    12    Ma-s.    449;  opinion  of  Wilde,  J.,  ia  Campbell  y.  Phelps, 

Knowlton   v.   Bartlett,   1   Pick.  271  ;  The  sujira,  approved.] 

People  V.  Dunning,  1  Wend.  16;  Gorham  ^  j„,g_  Vol.  1,  §§  83,  92.     If  the  allega- 

V.  Gale,  7  Cowen,  739  ;    Walden   v.  Da-  tion  is,  that  the  defendant  was  shciilf  on 

vison,  15  Wend.  5?5  ;  M'liuire  v.  Trum-  the  d:iy  of  delivery  of  tlie  writ  to  him,  and 

bull,  7  Johns.  35  ;  Grirncll  v.  Pliillips,  1  until  the  return  day  thereof,  proof  of  the 

Ma.-s.   530.     [*  No   action   lies   against  a  former  averment  is   sufficient,  the   latter 

Blieiiff  upon  a  judgment  recovered  against  being  immaterial.     Jervis  v.  Sidney,  3  D. 

his  deputv.     Pervear  v.  Kimball,  8  Allen,  &  R.  483. 

199.     In  Morgan  v.  Chester,  4  Conn.  387,  »  Ante,  Vol.  1,  §§  559-663,  574,   575, 

the  sheritf  is  said  to  be  a  joint  trespasser  84,  n. 
with  his  deputy ;  bat  in  Campbell  v.  Phelps 


512  LAW   OF   EVIDENCE.  [PART  IV. 

iff's  general  officer,  but  is  only  to  cover  each  distinct  liability  that 
he  may  come  under,  in  regard  to  every  several  warrant.^  But  any 
subsequent  act  of  recognition  of  the  bailiff's  authority,  by  the 
sheriff,  such  as  returning  the  process  served  by  the  bailiff,  or  giv- 
ing instructions  for  that  purpose,  is  admissible  to  establish  the 
agency  of  the  bailiff.^  The  bailiff  himself  is  a  competent  witness 
to  prove  the  warrant  under  which  he  acted  ;  but  it  will  seldom 
be  expedient  for  the  plaintifif  to  call  him,  as  he  will  be  liable  to 
cross-examination  by  the  defendant,  in  a  cause  which  is  virtually 
his  own.^ 

§  583.  It  may  also  here  be  stated,  that  the  admissions  of  an 
under-sheriff,  or  deputy,  tending  to  charge  himself,  are  receivable 
in  evidence  against  the  sheriff,  wherever  the  under-officer  is  bound 
by  the  record ;  and  he  is  thus  bound,  and  the  record  is  conclusive 
evidence  against  him,  both  of  the  facts  which  it  recites,  and  of 
the  amount  of  damages,  wherever  he  is  liable  over  to  the  sheriff, 
and  has  been  duly  notified  of  the  pendency  of  the  action,  and  re- 
quired to  defend  it.*  This  principle  applies  to  all  declarations  of 
the  under-officer,  without  regard  to  the  time  of  making  them. 
But  in  other  cases,  where  the  record  is  not  evidence  against  the 
under-officer,  his  declarations  seem  to  be  admissible  against  the 
sheriff,  only  when  they  accompanied  the  act  which  he  was  then 
doing  in  his  character  of  the  sheriff's  agent  and  as  part  of  the  res 
gestce,^  or  while  the  process  was  in  his  hands  for  service.^  Upon 
the  same  general  principle  of  identity  in  interest,  the  declarations 
of  the  creditor,  who  has  indemnified  the  sheriff,  are  admissible  in 
evidence  against  the  latter  in  an  action  by  a  stranger  for  taking 
his  goods  .'^ 

1  Drake  v.  Sykes,  7  T.  R.  113;  as  ex-  *  See  ante,  Vol.  1,  §  180,  and  note, 
plained  in  Martin  v.  Bell,  1  Stark.  413.  «  Ibid.     See  also  Vol.  1,  §§  113,  114; 

2  Martin  v.  Bell,  1  Stark.  413;  Sann-  Bowsheer  v.  Cally,  1  Campb.  391,  n. ; 
derson  v.  Baker,  3  Wils.  309 ;  2  W.  Bl.  North  v.  Miles,  Id.  389  ;  Snowball  v. 
832  ;  Jones  v.  Wood,  3  Campb.  228.     The  Goodricke,  4  B.  &  Ad.  541. 

return   of  a  person   styling  himself  dep-  ^  Jacobs  v.  Humphrey,  2  C.  &  M.  413  ;  4 

uty  sheriff  is   not  of  itself  sufficient  cvi-  Tyrw.  272,  S.  C.  ;  Mott  v.  Kip,  10  Johns, 

dence,  against  tbe  sheriff,  of  the  deputy's  ap-  478;  Mantz  v.  Collins,  4   H.  &   McHen. 

pointment.     Slaughter  v.  Barnes,  3  "A.  K.  216.     In  order  to  render  the  admissions  of 

Marsh.  413.     [*  To  discharge  the  sheriff  the  deputy  competent  evidence  against  the 

from  liability  for  the  acts  of  his  deputy,  sheriff,  it  is  ordinarily  sufficient  to  prove 

in  obeying  the  instructions  of  the  plaintiff,  that  he  VFas  a  deputy  of  the  sheriff,  and 

it  must  appear  that  the  deputy,  in  his  de-  that  he   acted  colore  officii,  at   the  time, 

parture    from   duty,   was   obeying  or  at-  without  proving  the  issuing  and  delivery 

tempting  to  obey  the  instructions   of  the  of  the  precept  under  which  he  professed  to 

plaintiff     Sheldon  v.  Payne,  7  N.  Y.  453.  act.     Stewart  v.  Wells,  6  Barb.  S.  C.  R. 

See  also  10  N.  Y.  398.]  79. 

8  Morgan   v.    Brydges,   2    Stark.   314.  T  Proctor  v.  Lainson,  7  C.  &  P.  629 
And  see  ante,  Vol.  1,  §  445. 


PART  IV.]  SHERIFF.  513 

5  584    (1  )    Where  the  action  is  against  the  sheriff  for  not  serv- 
ing mesne  process,  it  is  incumbent  on  the  plaintiff  to  prove  the 
cause  of  action;  for   which  purpose   any  evidence  is   competent 
which   would    be   admissible   in    the   suit    against   the   debtor. 
Hence  the  acknowledgment  of  the  debtor  that  the  debt  is  justly 
due  is  admissible  against  the   sheriff^     The  plaintiff  must  also 
prove  the  issuing  of  process,  and  the  delivery  of  it  to  the  officer. 
If  the  process  has  been  returned,  the  regular  proof  is  by  a  copy; 
if  not,  its  exisience  must  be  established  by  secondary  evidence ; 
and  if  it  is  traced  to  the  officer's  hands,  he  should  be  served  with 
notice  to  produce  it.^     And  here,  and  in  all  other  cases,  where  the 
issuing   of  process   is   alleged,  the   allegation  must  be  precisely 
proved,  or  the  variance  will  be  fatal.*     Some  evidence  must  also 
be  given  of  the  officer's  ability  to  execute  the  process;  such  as,  that 
he  knew,  or  ought  to  have  known,  that  the  person  against  whom 
he  held  a  capias  was  within  his  precinct ;  or,  that  goods,  which  he 
might  and  ought  to  have  attached,  were  in  the  debtor's  posses, 
sion  ^    The  averment  of  neglect  of  official  duty,  though  negative, 
it  seems  ought  to  be  supported  by  some  proof  on  the  part  of  the 
plaintiff,  since  a  breach  of  duty  is  not  presumed  ;  but  from  the 
nature  of  the  case,  very  slight  evidence  will  be  sufficient  to  devolve 
on  the  defendant  the  burden  of  proving  that  his  duty  has  been 
performed.^    The  damages  will  at  least  be  nominal,  wherever  any 
breach  of  duty  is  shown  ;  and  may  be  increased,  according  to  the 

PVlQCllCC' 

§  585  In  defence  of  actions  of  this  description,  where  the  suit  is 
for  neglecting  to  attach  or  seize  goods,  the  sheriff  may  show  that 
there  were  reasonable  doubts  as  to  the  ownership  of  the  goods,  and 

1  Gunter   v.   Clevton.   2    Lev.   8.5,   ap-  J  Bcckford   r,    Montague    2   Esp.  475; 

provell  in  Alexander  ..  Macauley.  4  T.  R.  Frost  v  Dougal    1  /^^y   128. 
In  ;  l>a,Uer  .  Fenn    2    Esp.  477    note  ;         J  See  ««.   J^oL  1   |§^7^B^-  81^^     ^^^^^^ 

Soman    v     Herne     Id.    69o  ,    K.g„s  ^   j,  g  Jur.  958 ;  6  Ad.  &  El.  468, 

V.  Ilerne,  2  Iv,p^  695  ^1^^™^-^  ^^^^^  ^7  ,.,,eive  the  an.ount  of  the  debt  and  costs 

t"  r  ^fi\  '  on  mesne  process,  and  stay  the  service  of 

8  (i  ,.  v«l   1    8S<soi    560  the  writ,  the  sheriff  is  liable  forthwith  for 

;  AZrVolt  kVrk'o'n  ;  Phil-  the  amo'unt  received  without  any  previous 

linon      Man-les    11  East,  516  ;  Bcvan  v.  demand.     Green  v.  Lowell,  3  Greenl.  3/3. 

jS",  4  fltcMi ;  Bromfield  v.  Jones.  [*  Where  a  sheriff  is  show^  to  be  guilty  of 

Irl   T^O-  Webb  i;    Ilernc    1  B.  &  P.  281.  ne-ligence  in  fliilmg  ^o  serve  a  w n  ,  ino 

it  funhlfstoddJm.' Palmer,  4  D    &  onus  of  showing  that  ^e  J^^^d-^  J^ 

R   624  •  3  B.  &  C.  2 ;  Lewis  v.  Alcock,  6  insolvent  falls  on  him.     Jenkms  v.  iroui- 

Dowl.  P.  C.  78.  man,  7  Jones,  Law,  169.J 


VOL.  II. 


33 


514  LAW   OF  EVIDENCE.  [?ART  IV. 

that  the  plaintiff  refused  to  give  him  an  indemnity  for  taking  them ; ' 
or,  that  they  did  not  belong  to  the  debtor.^  And  where  the  neg- 
lect was  in  not  serving  a  writ  of  execution,  he  may  impeach  the 
plaintiff's  judgment  by  showing  that  it  is  founded  in  fraud  ;  ^  first 
proving  that  he  represents  a  judgment  creditor  of  the  same  debtor, 
by  a  legal  precept  in  his  hands .^  He  may  also  show,  in  defence  of 
such  action,  that  there  were  attachments  on  the  same  goods  prior 
to  that  of  the  plaintiff,  for  which  he  stood  liable  to  the  attaching 
creditors,  whose  liens  still  existed,  and  that  these  would  absorb 
the  entire  value  of  the  goods.^  And  his  return  to  a  fieri  facias^ 
setting  forth  a  valid  excuse  for  not  having  sold  the  goods,  such  aSj 
that  they  were  casually  destroyed  by  fire,  or  that  proceedings  wero 
stayed  by  a  judge's  order,  or  the  like,  is  prima  facie  evidence  of 
the  fact,  in  his  own  favor.^ 

§  586.  (2.)  As  to  the  action  for  taking  insufficient  pledges  or  hail. 
Here  also,  though  the  allegation  of  the  insufficiency  of  the 
sureties  is  negative  in  its  terms,  yet  some  evidence  to  support  it 
must  be  produced  by  the  plaintiff,  though  slight  proof  will  suffice, 
the  fact  of  their  sufficiency  being  best  known  to  the  defendant, 
who  took  them ; "'  and  it  is  a  legal  maxim,  that  all  evidence 
is  to  be  weighed  according  to  the  proof  which  it  is  in  the 
power  of  one  side  to  produce,  and  in  the  power  of  the  other  to 
contradict.^  To  establish  the  fact  of  the  insufficiency  of  sureties, 
it  is  admissible  to  prove,  that  they  have  been  pressed  for  payment 
of  their  debts  by  the  importunity  of  creditors,  and  have  violated 
their  repeated  promises  to  pay.^  It  is  not  necessary  for  the  plain- 
tiff to  aver  and  prove  that  the  sheriff  knew  the  sureties  to  be 
insufficient;  it  is  enough jori'ma  facie  to  charge  him,  if  it  appears 
that  they  were  in  fact  so  at  the  time  when  he  accepted  them.^*^ 

1  Marsh  v.  Gold,  2  Pick.  975  ;  Bond  v.  ^  Commercial  Bank  I'.Wilkins,  9  Greenl. 
Ward,  7  Mass.  123;   Perley  v.  Foster,  9     28. 

Mass.    112.      [See    also    Weld   v.    Chad-  ^  Browning  v.  Hanford,  7  Hill  (N.  Y.) 

bourne,  37  Maine,  221.]  Rep.  120.     [«  See  Whithead  v.   Keyes,  3 

2  Canada  v.  Southwick,  16  Pick.  556.  Allen,  495,  as  to  conclusiveness  of  officer's 

3  Pierce  v.  Jackson,  6  Mass.  242.    [*  See  return.     Briggs  v.  Green,  33  Vt.  565.] 
also   Annis  v.  Gilmore,  47   Maine,   152.]  '^  Saunders    v.    Darling,    Bull.    N.    P. 
But  he  cannot  impeach  it  on  any  other  60. 

ground.     Adams  v.  Balch,  5  Greenl.  188.  ^  Per  Ld.  Mansfield,  Cowp.  65. 

[Or  he   may  show  that   an   arrangement  ^  Gwj-llim  v.  Scholey,  6  Esp.  100. 

had  been  made  between  himself  and  the  i°  Concanen  v.  Lethbridge,  2  H.  Bl.  36 , 

plaintiff,  by  which  he  was  to  levy  his  exe-  Evans  v.  Brander,  Id.  547  ;  Yea  v.  Leth- 

cutions  upon  the   real   estate  exclusively,  bridge,  4  T.  R.  433  ;  Sparhawk  v.  Bart 

yielding  the  personal  property  to  the  other  lett,  2  Mass.  188.     If  the  officer  accepts  a 

creditors.    Weld  v.  Chadbourne,  37  Maine,  forged  bail-bond,  he  is  liable  to  the  plain- 

231.]  tiff,  though  he  believed  it  to  be  genuine. 

*  Clark    V.    Foxcroft,   6    Greenl.    296.  Marsh  ?;.  Bancroft,  1  Met.  497. 
See  infra,  §§  593,  597 


PART  IV.]  SHERIFF.  '  515 

This  liability  the  sheriff  may  avoid  by  showing  that  they  were  at 
the  time  apparently  responsible,  and  in  good  credit;  or,  tha  he 
exercised  a  reasonable  and  sound  discretion  in  decidnig  upon  their 
sufficiency  ;  of  which  the  jury  are  to  judge.|  But  their  own 
statement  to  the  sheriff  as  to  their  responsibility  is  not  enough; 
though  they  are  competent  witnesses  for  him  on  the  trial.  On 
the  other  hand,  the  plaintiff  may  show,  that  the  sheriff  had  notice 
of  their  insufficiency,  or  did  not  act  with  due  caution,  under  the 
circumstances  of  the  case  ;  or,  that  their  pecuniary  credit  was 
low,  in  their  own  neighborhood.3  And  it  is  not  necessary  for 
the  plaintiff  to  show  that  he  has  taken  any  steps  against  the  bail 
in  order  to  establish  their  insufficiency,  as  the  fact  may  be  proved 
by  any  other  competent  evidence.*  _ 

S  587    (3  )    As  to  the  action  for  not  paying  over  money  levied 
and  collected.     The  money,  in  this  case,  as  soon  as  it  comes  into 
the  officer's  hands,  is  money  had  and  received  to  the  creditor  s 
use  ;  and,  where  the  precept  does  not  otherwise  direct  him,  he  is 
bound  to  pay  it  over  to  the  creditor  on  the  return  day  of  the  pro- 
cess under  which  it  was  levied,  without  any  demand,  and  earlier  it 
demanded;  upon  failure  of  which  an  action  lies.^     The  evidence, 
on  the  nart  of  the  plaintiff,  consists  of  proof  of  the  receipt  of  the 
money  by  the  officer,  and,  where  a  demand  is  requisite,  that  it  has 
been  demanded.     The  most  satisfactory  proof  of  the  receipt  of  the 
money  is  the  officer's  return  on  the  writ  of  execution;  which  is 
shown  by  an  examined  copy,  if  the  precept  has  been  returned,  and 
by  secondary  evidence,  if  it  has  not.     The  return  is  conclusive 
evidence  against  the  sheriff,  that  he  has  received  the  money  ;  but 
it  does  not  prove,  nor  will  it  be  presumed,  that  the  money  has 

,  TT-   J,         -ni  ,i„o    r;  Tonnt    11<=>  •  Jef-     introduced  for  the  benefit  of  the  sheriff; 

the  United  States  as  common  law.     The  Long  .-.  B.y^^-£,J   ^^-^sJ     Glezen   u 

first  branch  of  this  statute,  for  it  consists  "^;'"^^' j^^^^/g^J'/  Sparhawk  ..  Bartlett. 

of  only  one  section,  requires  the  sheriffs  to  Kood,  2  Met.  43u  ,  opa 

"let  out  of  prison  all  manner  of  persons  2  Mass.  ia4.                                      g 

arrested,   or 'being    in    their   custody,   by  llZTBlroriclLv^^^^^^ 

force  of  any  writ,  bill,  or  warrant  m  any  ^  D  Uc  «'•  ^irch,  3  Ca"^p            ,            ^^ 

action  personal,  or  by  cause  of  indictment  r.  Bailey    3    ^Jj^^"    f  .'*'^^;„,^^  iH  ^."jones, 

of  trespLs,  upon  reasonaWe  sureties  of  suf-  Sumner,  10  P.cL  38 .     Lon  ^    ^  ^^^^^^^ 

ficient  persons  having  sufficient  w.thm  the  1  Stark.  ^^.^^^^^^^^^           Bailey,  J.; 

counties  where  such  persons  be  so  let  to  8  B.  &-  O.  --A  '-^'       ,'  ^".3 

baU  or  mainprise,"  &c.     This  clause  was  Green  ••  LoweU   ^  Grtcnl.  373. 


616  LAW   OF   EVIDENCE.  [PART  IV. 

been  paid  over  to  the  creditor.^  If  the  money  was  levied  by  an 
under-oflficer  or  bailiff,  his  connection  with  the  sheriff  must  be  es- 
tablished by  further  evidence,  as  already  has  been  stated. ^ 

§  588.  In  the  defence  of  an  action  for  this  cause,  the  sheriff  may 
show  that  the  goods,  out  of  which  he  made  the  money,  were  not 
the  property  of  the  judgment  debtor,  but  of  a  stranger,  to  whom 
he  is  liable  ;  or  that  the  judgment  debtor  had  become  bankrupt, 
and  that  the  money  belonged  to  his  assignees ;  and  this,  notwith- 
standing his  return,  that  he  had  levied  on  the  goods  of  the  debtor.^ 
He  may  also  show  that  the  plaintiff  had  directed  him  to  apply  the 
money  to  another  purpose,  which  he  bad  accordingly  done ;  *  or, 
that  it  was  absorbed  in  the  expenses  of  keeping  the  goods.^  The 
amount  due  to  him,  for  his  collection  fees  or  poundage,  is  to  be 
deducted  from  the  gross  amount  in  his  hands.^ 

§  589.  (4.)  In  an  action  against  the  sheriff  for  an  escape,  the 
plaintiff  must  prove,  first,  his  character  as  creditor  ;  secondly,  the 
delivery  of  the  process  to  the  officer  ;  thirdly,  the  arrest ;  fourthly, 
the  escape ;  and,  lastly,  the  damages  or  debt.  If  the  escape  was 
from  an  arrest  upon  execution,  the  plaintiff's  character  of  creditor 
is  proved  by  a  copy  of  the  judgment ;  and  if  the  action  is  brought 
in  debt,  the  plaintiff,  by  the  common  law,  is  entitled  to  recover  the 
amount  of  the  judgment,  at  all  events,  and  without  deduction,  or 
regard  to  the  circumstances  of  the  debtor.'^  But  where  the  action 
is  brought  in  trespass  on  the  case,  as  it  must  be  where  the  arrest 
was  upon  mesne  process,  and  it  may  be  where  the  arrest  was  upon 
execution,  the  plaintiff  must  prove  his  debt,  or  cause  of  action,  in 
the  manner  we  have  already  stated,  in  actions  for  not  serving  pro- 
cess.^ li\iQ process  must  be  proved  precisely  as  alleged,  a  material 
variance  being  fatal.^     The  delivery  of  the  process  to  the  officer 

1  Cator    V.   Stokes,    1    M.    &    S.    599.         ^  Twombly  v.  Hunncwell,  2  Greenl.  221. 
[*  Sanborn  v.  Baker,  1  Allen,  526.     Shel-         ^  Lonjrdiir  v.  Jones,  1  Stark.  346. 

don  V.  Payne,  7  N.  Y.  453,  and  this  thou.oh  7  Hawkins  v.  Plomcr,  2  W.  Bl.  1048; 

the  return  is  made  by  his  deputy.    Ih.    An  Porter   v.    Sayward,    7    Mass.    277.      The 

officer  cannot   be  permitted  to  testify  on  common  law  has  been  altered  in  this  par- 

the  trial  that  he  did  not  take  all  the  prop-  ticular  in  some  of  the  United  States,  by 

erty  returned  on  the  execution  as  taken  ;  statutes  which  provide  that,  in  an  action 

but  he  may  be  permitted  to  amend  his  re-  of  debt  for  an  escape,  the   plaintiff  shall 

turn  according   to   the  facts.     Johnson  v.  recover  no  more  than  such  actual  damage 

Stone,  40  N.  H.  197.  as    he   may  prove  that  he  has  sustained. 

2  Supra,  §  582  ;  "Wilson  v.  Norman,    1  Infra,  §  599. 
Esp.  1  .'J4  ;  McNeil  v.  Perchard,  Id.  263.  '»  g^pra,  §  584. 

3  Brydges  v.  Walford,  6  M.  &  S.  42  ;  1  »  Supra,   §  584,  Vol.  1,  §§  63,  64,  70, 
Sterk.  389,  n.  73;  Phillipson  v.  Mangles,  11  East,  516; 

*  Comm'rs   v.    Allen,   2    Rep.    Const     Bromfield  v.  Jones,  4  B.  &  C.  380. 
Conrt.  S.  Car.  88. 


PART  IV.]  SHERIFF.  617 

will  be  proved  by  his  return,  if  it  has  been  returned ;  or  by  any 
other  competent  evidence,  if  it  has  not.  The  return  of  cepi  corpus 
will  be  conclusive  evidence  of  the  arrest;  and  if  there  has  been  no 
return,  the  fact  of  arrest  may  be  proved  aliunde,  and  by  parol.^ 
The  escape  of  the  debtor  is  proved  by  any  evidence,  that  he  was 
seen  at  large  after  the  arrest,  for  any  time,  however  short,  and 
even  before  the  return  of  the  writ.^  Tlie  difficulty  of  defining  the 
going  at  large,  which  constitutes  an  escape,  has  been  felt  and  ac- 
knowledged by  judges.^  Mr.  Justice  Buller  said,  that  wherever 
the  prisoner  in  execution  is  in  a  different  custody  from  that  which 
is  likely  to  enforce  payment  of  the  debt,  it  is  an  escape  ;*  which  he 
illustrated  by  the  case  of  a  prisoner  permitted  to  go  to  a  horse- 
race, attended  by  a  bailiff.  And  where  a  coroner,  having  an  exe- 
cution against  a  deputy  jailer,  arrested  him,  and  left  him  in  the 
jail-house,  neither  the  sheriff  nor  any  other  authorized  person  be- 
ing there  to  receive  him,  it  was  held  an  escape  in  the  sheriff;  upon 
the  principle,  as  laid  down  by  Parsons,  C.  J.,  that  every  liberty 
given  to  a  prisoner,  not  authorized  by  law,  is  an  escape.^  If  the 
liberty  was  given  through  mistake,  it  seems  it  is  still  an  escape;* 
but  if  he  be  taken  from,  prison  through  necessity,  and  without  his 
own  agency,  in  case  of  sudden  sickness,  or  go  out  for  the  preserva- 
tion of  life  from  danger  by  fire,  and  return  as  soon  as  he  is  able, 
it  is  not  an  escape.^ 

The  damages  in  this  case  will  hereafter  be  considered. 

§  590.  Tlie  party  escaping  is  a  competent  witness  for  either  par- 
ty, in  an  action  for  a  voluntary  escape,  for  he  stands  indifferent ; 
but  where  the  action  is  for  a  negligent  escape,  he  is  not  a  compe- 
tent witness  for  the  defendant,  to  disprove  the  escape,  because  he 
is  liable  over  to  the  sheriff.^  But  though  the  count  is  for  voluntary 
escape,  yet  under  it  evidence  of  a  negligent  escape  is  admissible  ; 
for  the  substance  of  the  issue  is  the  escape,  and  not  the  manner.^ 

§  591.  In  defence  of  the  action  for  an  escape,  the  sheriff  will  not 
be  permitted  to  show  that  the  process  was  irregularly  issued ;  nor, 
that  the  judgment  was  erroneous  ;  nor,  that  the  plaintiff  knew  of 

1  Fairlie  v.  Birch,  3  Campb.  397.  Cargill  v.  Taylor,  10  Mass.  207  ;  1  Roll. 

2  Hawkins  v.  Plomcr,  2  \V.  Bl.  1048 ;  3     Abr.  808,  pi.  5,  6. 

Com.  Dig.  642-646,  tit.  Escape,  C.  D.  »  gee  ante,  Vol.  1,  §§  394,  404;  Cass  v. 

8  Per  Eyre,  C.  J.,  1  B.  &  P.  27.  Cameron,  1  Peake,  124;  Hunter  v.  King, 

*  Benton  v.  Sutton,  1  B.  &  P.  24,  27.  4  B.  &  Aid.  21 0  ;  Sheriffs  of  Norwich  v. 

6  Colby  V.  Sampson,  5  Mass.  310,  312,  Bradshaw,  Cro.  El.  53  ;  Eyles  v.  Eaikney, 

per  Parsons,  C.  J.  I  Peake,  143,  n. 

^  Call  V.  Hagger,  8  Mass.  429.  9  Bovev's  case,  1  Ventr.  211,  217  ;  Bon- 

">  Baxter  t;.  Taber.  4   Mass.  361,  369  ;  afous  v.  Walker,  2  T.  11.  126. 


518  LAW   OF  EVIDENCE.  [PART  IV. 

the  escape,  yet  proceeded  in  his  action  to  judgment,  and  had  not 
charged  the  debtor  in  execution,  though  he  had  returned  to  the 
prison  ;  ^  nor,  that  the  plaintiff  had  arrested  the  debtor  upon  a 
second  writ,  by  another  sheriff,  and  had  discharged  him  without 
bail.2  But  under  the  general  issue  he  may  show  that  the  court 
from  which  the  process  was  issued  had  no  jurisdiction  of  the  mat- 
ter, and  that  therefore  the  process  was  void.^  He  may  also  show, 
that  before  the  expiration  of  the  term  in  which  the  writ  was  re- 
turnable, but  not  afterwards,  the  debtor  did  put  in  and  perfect  bail, 
or  that  he  had  put  in  bail,  and  seasonably  rendered  himself  in 
their  discharge,  though  no  bond  was  taken ;  *  or  that  the  prisoner, 
while  going  to  jail  on  mesne  process,  was  rescued  ;  but  not  if  he 
was  taken  in  execution.^  So  he  may  show  that  the  escape  was 
by  fraud  and  covin  of  the  plaintiff  in  interest.^  If  he  pleads  that 
there  was  no  escape,  this  is  an  admission  of  the  arrest  as  alleged^ 
§  592.  (5.)  As  to  the  action  for  a  false  return.  In  the  case  of 
a  false  return  to  mesne  process,  the  plaintiff  must  prove  the  cause 
of  action,^  the  issuing  of  the  process,  and  the  delivery  of  it  to  the 
officer,  in  the  same  manner  as  has  already  been  shown,  in  the  ac- 
tion for  not  serving  mesne  process.  If  it  was  a  writ  of  execution, 
he  should  produce  a  copy  of  the  judgment,  and  prove  the  issuing 
of  the  execution ;  of  which  the  clerk's  certificate  in  the  margin  of 
the  record  is  usually  received  as  sufficient  evidence.  The  officer's 
return  must,  in  either  case,  be  shown,  and  some  evidence  must  be 
adduced  of  its  falsity ;  but  slight  or  prima  facie  evidence  of  its 
falsity  will  be  sufficient  to  put  the  sheriff  upon  proof  of  the  truth 
of  his  return  ;  such,  for  example,  as  showing  the  execution  debtor 
to  be  in  possession  of  goods  and  chattels,  without  proving  the 
property  to  be  in  him,  when  the  sheriff  is  sued  for  falsely  mak- 
ing a  return  of  nulla  hona.^  If  the  sheriff  has  omitted  to  seize  the 
goods,  in  consequence  of  receiving  an  indemnity,  the  controversy 

1  Bull.  N.  P.  66,  69.  t  Bull.  N.  P.  67. 

2  Woodman  v.  Gist,  2  Jur.  942.  ^  See   Parker   v.   Fenn,  2   Esp.  477,  n. 

3  Bull.  N.  P.  65,  66.  [The  plaintiff  must  show,  not  only  that  the 
*  Pariente  v.  Plumtree,  2  B.  &  P.  35 ;     return   is   untrue  in  fact,  but  that  he  has 

Moses  V.  Norris,  4  M.  &  S.  397.  been  damaged  thereby.     Nash  v.  Whitney, 

6  May  V.  Proby,  Cro.  Jac.  419  ;  1  Stra.  39  Maine,  341.] 

435;   Bull.    N.   *P.    68.      [*  In   an   action  ^  Magne   i'.    Seymour,   5    Wend.    309. 

against  a  sheriff  for  an  escape  suffered  by  And  see  Stubbs  v.  Lainson,  1   M.   &  W. 

his  deputy,  the  return  of  a  rescue  upon  the  728.     The  judgment   delitor  is  a  compe- 

writ  is  not  conclusive  evidence  in  favor  of  tent    witness    against    the   sheriff   in    an 

the  defendant.     Whithead  v.  Keyes,  3  Al-  action   for  a  false  return  of  nulla   bona. 

len,  495.1  Taylor  v.  The   Common»weaUK,  f   BrH, 

6  Hiscocks  V.  Jones,  1  M.  &  Malk.  269.  356. 
See  also  Doe  v.  Trye,  5  Bing.  N.  C.  573. 


PART  IV.]  SHERIFF.  619 

being  upon  the  title  of  the  debtor,  the  plaintiff  must  be  prepared 
with  evidence  of  the  debtor's  property.  And  if  the  process  was 
against  several,  and  the  allegation  is,  that  they  had  goods  which 
might  have  been  seized,  the  allegation,  being  severable,  will  be 
supported  by  proof  that  any  one  of  them  had  such  goods.^ 

§  593.  In  the  defence  of  the  action  for  a  false  return  of  nulla 
bona  to  a  writ  of  execution,  the  sheriff  may  show  that  the  plaintiff 
assented  to  the  return,  after  being  informed  of  all  the  circum- 
stances ;  2  or,  where  part  of  the  money  only  was  levied,  that  the 
plaintiff  accepted  that  part  with  intent  to  waive  all  further  remedy 
against  the  sheriff,  and  with  full  knowledge  of  the  facts ;  ^  or,  that 
the  plaintiff  has  lost  his  priority,  by  ordering  the  levy  of  his  execu- 
tion to  be  stayed,  another  writ  having  been  delivered  to  the  sher- 
iff;* or,  that  the  first  levy,  for  not  returning  which  the  action  is 
brought,  was  fraudulently  made,  and  so  void ;  ^  or,  that  the  plain- 
tiff's judgment  was  entered  up  by  a  fraud  and  collusion  with  the 
debtor,  the  sheriff  first  proving  that  he  represents  another  creditor 
of  the  same  debtor,  by  showing  a  legal  precept  in  his  hands.^  He 
may  also  show  that  the  goods  of  the  debtor  were  absorbed  by  a 
prior  execution  in  his  hands ;  and  in  such  case  the  plaintiff  may 
rebut  this  evidence,  by  proving  that  the  prior  execution  was  con- 
cocted in  fraud,  and  that  the  sheriff  had  previous  notice  thereof, 
and  was  required  by  the  plaintiff  not  to  pay  over  the  proceeds  to 
the  prior  creditor.^  He  may  also  prove  that  the  debtor  had  pre- 
viously become  bankrupt,  for  which  purpose  the  petitioning  credi- 
tor is  a  competent  witness  to  prove  his  own  debt ;  the  commission 
being  otherwise  proved.^  And  if  the  assignees  are  the  real  de- 
fendants, the  plaintiff  may  give  in  evidence  the  petitioning  credi- 
tor's declarations  in  disparagement  of  his  claim,  though  he  has 
not  been  called  as  a  witness  by  the  defendant.^ 

§  594.    In  answer  to  the  defence  of  nulla  bona,  founded  on  an 

1  Jones  V.  Clavton,  4  M.  &  S.  349.  251  ;    Kcmpland   j;.   Macaulcy,   1  Peake, 

'^  Stuiirt  V.  Wliitakcr,  2  C.  &  P.  100.  65. 

8  Bcvnon    v.    Garratt,    1   C.  &  P.  154.  ^  Bradley  r.  Windham,  1  Wils.  44. 

Here  tlic  officer  levied  a  part,  and  returned  •>  Clark  v.   Foxcroft,  6    Greenl.  296;  7 

nulla  bona  as  to  the  residue,  and  the  plain-  Greenl.  348.     And  see  Turvil  v.  Tipper, 

titf  accepted  the  part  levied  ;    which  was  Latch,  222,  admitted  in  Tyler  v.  Duke  of 

held  to  he  a  waiver  of  all  further  claim  on  Leeds,  2  Stark.  218,  and  in  Harrod  v.  Ben- 

the  sheriff,  the  plaintiff  having  been  previ-  ton,  8  B.  &  C.   217.     Sec  also  Pierce  w. 

oushj  advised  that  it  ivoiild  have  that  effect.  Jackson,  6  Mass.  242  ;  Supra,  §  585. 

Sed  qucere,  and  see  Holmes  v.  Clifton,  10  "^  WarmoU  v.  Young,  5  B.  &  C.  660, 

Ad.  &  El.  673,  where  it  was  held,  that  the  ^  Wright  v.  Lainson,  2  M.  &  W.  739 

mere  receipt  of  the  money  levied  will  be  no  And   see  Brydges  v.  Walford,  6  M.  &  S. 

bar  to  the  action.  42. 

*  Smallcombe  v.  Cross,  1  Lord  Raym.  ^  Dowden  v.  Fowle,  4  Campb.  38. 


520  LAW   OF   EVIDENCE.  [PART  IV 

alleged  sale  and  assignment  of  his  goods,  by  the  debtor,  tlic  plain- 
tiff may  prove  that  the  assignment  or  sale  was  fraudulent.^  So, 
if  the  sheriff  defends  his  return,  on  the  ground  that  the  debtor 
was  an  ambassador's  domestic  servant,  the  plaintiff,  in  reply,  may 
show  that  his  appointment  was  colorable  and  illegal.^  Questions 
of  this  sort,  though  extremely  embarrassing  to  the  sheriff,  the 
common  law  ordinarily  obliges  him  to  determine  at  his  peril ;  but 
where  there  are  reasonable  doubts  as  to  the  property  of  the  debtor 
in  the  goods  in  his  possession,  or  which  the  sheriff  is  directed  to 
seize,  or  in  regard  to  the  lawfulness  of  an  arrest,  he  may  refuse  to 
act  until  he  is  indemnified  by  the  creditor.^  By  the  common  law, 
he  might  also  apply  to  the  court  to  enlarge  the  time  for  making 
his  return,  until  an  indemnity  was  given.*  Where  he  is  entitled 
to  an  inquisition  to  ascertain  whether  the  property  in  goods  seized 
on  execution  is  in  the  debtor  or  not,  the  finding  is  not  conclusive 
for  him ;  and  in  England  it  lias  been  held  inadmissible  in  his  favor, 
imless  upon  an  issue  whether  he  has  acted  maliciously  ;  °  but  in 
the  United  States  it  has  been  admitted  in  evidence,  and  held  con- 
clusive in  his  favor,  in  an  action  by  the  creditor  for  a  false  return 
of  nulla  hona,  where  ho  acted  in  good  faith  ;  ^  though  it  is  no 
justification,  but  is  only  admissible  in  mitigation  of  damages  in  an 
action  of  trespass  by  the  true  owner  of  the  goods,  for  illegally  tak- 
ing them.'^ 

§  595.  Where  the  action  is  for  refusing  to  take  hail,  it  is  suffi- 
cient for  the  plaintiff  to  prove  the  arrest,  the  offer  of  sufficient 
bail,  and  the  commitment.  And  it  is  not  for  the  sheriff  to  say 
that  the  plaintiff  did  not  tender  a  bail-bond  ;  for  it  was  his  own 
duty  to  prepare  the  bond,  though  the  party  arrested  is  liable  to  pay 
him  for  so  doing.^ 

§  596.  (6.)    The  sheriff  is  also  liable  to  an  action  for  extortion, 

1  Dewey  v.  Bayntum,  6  East,  257.  the  court  has   no  power  to   enlar{!:e   the 

2  Dellvalle  v.  Plomer,  3  Campb.  47.  time  of  return,  it  being  fixed  by  statute,  it 
8  Bond  V.  Ward,  7  Mass.    123  ;  Marsh     is  conceived  that  the  refusal  of  the  party 

r.  Gold,  2  Pick.  285  ;  Perley  v.  Foster,  9  to  indemnify  the  sheriff,  in  a  case  of  rea- 

Mass.   112,   114;    Pieroe   v.  Partridge,  3  sonable  doubt  in  regard  to  the  service  of 

Met.  44  ;  King  v.  Bridges,  7  Taunt.  294 ;  process,  would  afford  him  a  good  defence 

Shaw  V.  Tumbridge,  2  W.  Bl.  1064.  to  the  action,  or  at  least  would  reduce  tlie 

*  Watson  on  Sheriffs,  p.  195  ;  Sewell  on  damages  to  a  nominal  sum. 

Sheriffs,  p.  285.     In  England,  by  the  in-  ^  Latkow  v.  Eamer,  2  H.  Bl.  437  ;  Glos- 

terpleader  act,  1  &  2  W.  4,  ch.  58,  a  sum-  sop  v.  Poole,  3  M.  &  S.  175  ;  Farr  v.  New- 

mary  mode  is  provided  for  the  speedy  de-  man,   4   T.   R.   633 ;  Sewell   on  Sheriffs, 

termination  of  such  questions.     In  some  p.  243 ;  Watson  on  Sheriffs,  p.  1 98. 

of  the  United  States,  there  are  statutory  ^  Bayley  v.  Bates,  8  Johns.  185. 

provisions  for  the  like  purpose,  and  for  the  "^  Townsend  v.  Phillips,  10  Johns.  98. 

sheriff's  protection;  but  in     thers,  where  ^  Milne  v.  Wood,  5  C  &  P.  587. 


PARI  IV.]  SHERIFF.  521 

which  consists  in  the  unlawful  taking,  by  color  of  his  office,  either 
in  money  or  other  valuable  thing,  of  what  is  not  due,  or  before  it 
is  due,  or  of  more  than  is  due.  If  the  money  levied  is  not  suffi- 
cient to  satisfy  the  plaintiff's  claim,  the  retaining  of  any  part, 
which  ought  to  have  been  paid  over  to  the  plaintiff,  is  an  indirect 
receiving  and  taking  from  him.^  In  this  action,  the  principal 
points  to  be  proved  by  the  plaintiff  are,  (1.)  the  process;  and  if 
it  be  an  execution,  he  must  prove  the  judgment  also,  on  which  it 
issued,  if  it  is  stated,  though  unnecessarily,  in  the  declaration  ;  ^ 
(2.)  the  connection  between  the  officer  and  the  sheriff  who  is 
sued;  and  (3.)  the  act  of  extortion.  The  evidence  to  prove  the 
two  former  of  these  points  has  already  been  considered.^  The  last 
is  made  out  by  any  competent  evidence  of  the  amount  paid,  beyond 
the  sum  allowed  by  law. 

§  597.  (7.)  Where  the  action  against  the  sheriff  is  for  taking 
the  goods  of  the  plaintiffs  he  being  a  stranger  to  the  process,  the 
controversy  is  usually  upon  the  validity  of  the  plaintiff's  title  as 
derived  from  the  judgment  debtor,  whicli  is  impeached  on  the 
ground  that  the  sale  or  assignment  by  the  debtor  to  the  plaintiff 
was  fraudulent  and  void  as  against  creditors.  Here,  if  the  plain- 
tiff has  never  had  possession  of  the  goods,  so  that  the  sale,  what- 
ever it  was,  is  incomplete  for  want  of  delivery,  the  proof  of  this 
fact  alone  will  suffice  to  defeat  the  action.  But  if  the  transaction 
was  completed  in  all  the  forms  of  law,  and  is  assailable  only  on 
the  ground  of  fraud,  the  sheriff  must  first  entitle  himself  to  im- 
peach it,  by  showing  that  he  represents  a  prior  creditor  of  the 
debtor,  and  this  is  done  by  any  evidence  which  would  establish 
this  fact  in  an  action  by  the  creditor  against  the  debtor  himself, 
with  the  additional  proof  of  the  process  in  the  sneriff's  liands,  in 
favor  of  that  creditor,  under  which  the  goods  were  seized.*  This 
evidence  has  already  been  considered,  in  treating  of  actions  for 
not  executing  process,  and  for  an  escape.**  It  is  only  necessary 
here  to  add,  that,  when  the  sheriff  justifies  under  final  process,  he 
need  not  show  its  return  unless  some  ulterior  proceeding  is  requi- 

1  Buckle  V.  Bcwes,  3  B.  &  C.  688.  Billers,  1  Ld.  Raym.  7.33;  Ackworth   v. 

2  Savajie  v.  Smith,  2  W.  Bl.  1101,  ex-     Kcmpe,  1  Doug.  40;  Damon  v.  Bryant,  2 
plained  in  5  T.  K.  498.  Pick.  411  ;  Glasier  v.   Eve,  1  Bin<r.  209. 

8  See  supra,  §§  .'382,  .584.  The   recital  of  the   writ,   in  the  sheriff's 

*  Truitt    V.    Revill,    4    Harringt.    71 ;  warrant  to  his  offi<er,  is  some  evidence  of 

Brown  i-.  Bissctt,  1  N.  Jer.  46.  the  precept  in  his  hands.     Bessey  j>.  W'D^ 

6  Supra,  §§  584,  .589.     And  see  Martvn  ham,  6  Ad.  &  El.  166,  N.  S. 

r.   Podger,  5  Burr.  2631,  2633 ;  Lake  v. 


522  LAW   OF   EVluENCE.  [PART  17. 

site  to  complete  tlie  justification  ;  for,  being  final,  and  executed, 
the  creditor  lias  had  the  effect  of  his  judgment ;  but  in  the  case  of 
mesne  process,  as  the  object  of  the  writ  is  to  enforce  the  appear- 
ance of  the  party,  and  to  lay  the  foundation  of  further  proceed- 
ings, the  officer  will  not  be  permitted  to  justify  under  it,  after  it 
is  returnable,  unless  he  shows  that  he  has  fully  obeyed  it  in  mak 
ing  a  return.i  The  proofs  in  regard  to  fraud  are  considered  as 
foreign  to  the  design  of  this  work.^ 

§  598.  In  regard  to  the  competency  of  witnesses  for  and  against 
the  sheriff,  in  addition  to  what  has  already  been  stated  respecting 
his  deputies  and  the  execution  creditor,^  it  may  here  further  be 
observed,  that,  where  the  issue  is  upon  a  fraudulent  conveyance  by 
the  judgment  debtor,  his  declarations,  made  at  the  time  of  the  con- 
veyance, are  admissible  as  part  of  the  res  yestce  ;  and  that,  where 
the  question  is  wholly  between  his  own  vendee  and  the  attaching 
creditor,  his  interest  being  balanced,  he  is  a  competent  witness  for 
either  party ;  *  but  where  a  question  remains  between  him  and  his 
vendee  as  to  the  title,  he  is  not  a  competent  witness  for  the  sher- 
iff, to  impeach  it.^  A  surety  is  a  competent  witness  for  the  sheriff, 
in  an  action  for  taking  insufficient  sureties.^     The  owner  of  goods, 

1  Rowland  v.  Veale,  Cowp.  18;  Cheas-  hoe  v.  Shed,  8  Met.  326.     If  the  want  of 

ley  ?;•  Barnes    10  East,  93;    Freeman  v.  jurisdiction  of  tlic  magistrate  appears  on 

Bluett    1    hall<.  410;  1    Ld.    Raym.  6-33,  the  face  of  the  process,  the  process  does 

634;  Chxi-k  V.  I'oxcroft,  6  Grecnl.    296;  not   protect  the   officer,  hut  he  is  a  tres- 

Kuss  V.  Buttcrfield,  6  Cusli,  243  ;  Roberts  passer.     Fisher  v.  McGirr,  1  Gray  45-46 

r.  Wentworth,  .5  lb.  192.     See  Wilder  v.  See  also  Kennedy  v.  Duncklce, 'lb.    7l! 

Holden,  24  Pick.  8,  12.]     [*  "  The  general  See  also  Twitchell  v.  Shaw,  10  Gush.  46. 

doctrine  is  well  established,  that  if  a  sheriff  An  officer  committed  on  execution   at  the 

seizes  goods  under  a  writ  which  it  is  his  request  of  the  judgment  creditor,  a  debtor 

duty  to  return,  he  has  no  justification  un-  to  tlie  jail  fMrtliest  from  his  residence,  al- 

w?„     <^'scharges  that  duty."   Hoar,  J.,  in  though  the  debtor  requested  the  jailer  to 

Willuims^.  Babbitt,  14  Gray,  141.]  commit   him  to  a  nearer  jail  in  the  same 

bee   Koberts  on   Fraudident  ConA^ev-  countv,  and  it  was  held  that  he  was  not 

ances,  pp.  542  -.590,  2  Kent,  Coram.  532  therefor  liable  to  an  action  by  the  debtor, 

wu  '^^'u  ''^           subject  is  fully  treated.  Woodward  v.  Hopkins,  2  Gray,  210    212. 

Where  the  goods  were  taken  on  execution,  A  person  who  is  arrested  on  a  void  exe- 

and  were  found  in  the  possession   of  the  cution,  and  gives  bond  for  the  prison  limits, 

judgment  debtor,  and  are  replevied  by  a  cannot   recover  of  the   officer,   or  of  the 

person  claimmg  title  as  owner   of  them,  execution  creditor,  damages  for  romainino- 

the  burden  of  proof  is  on  the  plaintiff  in  within  the   prison  limits  according  to  the 

replevin   to   show  his   own    title;  but   if  terms   of  his   bond.     Allen   v.    Shed     10 

they  were  taken  out  of  the  plaintiff's  pos-  Gush.  375.] 

session,  the  burden  of  proof  is  on  the  offi-  ^  Sui^>ra,  §§  583,  593. 

cer,  to  show  that  they  were  the  property  *  Ante,  Vol.  1,  §§  397,  398. 

of  the  judgment  debtor.     Merritt  w.  Lyon,  6  Bland  v.   Ansley,    2   New   Rep.  331. 

3  Barb.  S.  C.  R.  110.     [An  officer  while  In  this  case,  the  debtor  had  sold  a  house 

serving  a  process,  regular  on  its  foce,  and  to  the  plaintiff,  but  whether  he  sold  the 

issued  by  a  magistrate  or  court  having  goods  in  it  also  was  a  matter  in  dispute 

jurisdiction    over    the    subject-matter,    is  between  them ;  and  he  was  therefore  held 

justified  thereby  for  all  acts  done  by  him  incompetent  to  testify  in  favor  of  his  own 

in  Its  lawful  execution.     Clarke  v.  May,  2  claim. 

Gray,  413;  Whipple  v.  Kent,  lb.;  Dona-  6  i  Saund.  195  J,  note  by  WiUiams. 


PART  IV.]  SHERIFF.  523 

who  has  forcibly  rescued  them  out  of  tho  sheriff's  hands,  is  also 
a  competent  witness  for  the  sheriff,  in  an  action  for  falsely  return- 
ing nulla  bona  on  an  execution ;  for  such  return  precludes  the 
sheriff  from  maintaining  an  action  against  him  for  the  rescue.^ 

§  599.  The  damages  to  be  recovered  in  an  action  against  the 
sheriff  will,  in  general,  be  commensurate  with  the  extent  of  the  in- 
jury .^  But  in  debt,  for  an  escape  on  execution,  the  measure  of 
damages  is  the  amount  of  the  judgment,  without  abatement  on  ac- 
count of  the  poverty  of  the  debtor,  or  any  other  circumstances.^ 
And  where  the  sheriff  has  falsely  returned  bail,  when  he  took  none, 
and  an  action  is  brought  against  him  for  refusing  to  deliver  over 
the  bail-bond  to  the  creditor,  he  is  liable  for  the  whole  amount  of 
the  judgment,  and  cannot  show,  in  mitigation  of  damages,  that  the 
debtor  was  unable  to  pay  any  part  of  the  debt ;  for  this  would  be 
no  defence  for  the  bail  themselves,  and  the  sheriff,  by  his  false  re- 
turn, has  placed  himself  in  their  situation.^  But  in  other  cases, 
though  the  judgment  recovered  by  the  plaintiff  against  the  debtor 
is  2Jri7na  facie  evidence  of  the  extent  of  the  injury  which  the  plain- 
tiff has  sustained  by  the  officer's  breach  of  duty  in  regard  to  the 
service  and  return  of  the  process,  yet  it  is  competent  for  the  officer 
to  prove,  in  mitigation  of  the  injury,  any  facts  showing  that  the 
plaintiff  has  suffered  nothing,  or  but  little,  by  his  unintentional  de- 
fault or  breach  of  duty  .^  The  jury  may  give  more  than  the  amount 
of  the  judgment,  if  they  believe  that  the  wrong  was  wilful  on  the 
part  of  the  officer,  by  adding  to  it  the  incidental  expenses  of  the 
plaintiff,  and  the  costs  not  taxable.  On  the  other  hand,  if  it  should 
be  apparent  that  the  wrong  done  by  the  officer  was  not  the  result 
of  a  design  to  injure,  and  that  by  it  the  plaintiff  is  not  placed  in  a 

1  Thomas  v.  Pearse,  5  Price,  547.  action  of  debt  for  an  escape;  and  the  rule 

2  [*  In  a  suit  against  a  sheriff  for  dam-  is  never  applied,  in  any  State,  to  an  action 
ages  for  an  illegal  attachment  of  plaintiff's  of  debt  upon  the  sheriff's  bond.  [*  In 
etock  in  trade,  proof  of  injury  to  plaintiff's  Smith  v.  Knapp,  30  N.  Y.  592,  it  is  held 
business  as  a  merchant  is  inadmissible  as  that  in  an  action  for  an  escape,  if  it  is 
a  basis  for  calculating  damages.  Dexter  shown  that  the  debtor  was  totally  insolvent, 
V.  Paugh,  18  Cal.  372. J  the  plaintiff  is  not  entitled   to  recover  of 

8  Hawkins  v.  Plomcr,  2  W.  Bl.  1048  ;  the  sheriff  the  whole  of  the  amount  of  the 

Alsept  V.  Eyles,  2  H.  Bl.  108,  113  ;  Supra,  judgment.     See  also  Ledyard  v.  Jones,  " 

§  589  ;  Bernard  v.  The  Commonwealth,  4  N.  Y.  550.] 

Litt.  R.  150;  Johnson  v.  Lewis,  1  Dana,  *  Simmons  j;.  Bradford,  15  Mass.  82. 
183;  Shewell  v.  Fell,  3  Yeates,  17;  4  6  Evans  f.  Manero,  8  M.  &  W.  46-3,  473, 
Yeates,  47.  Interest,  from  the  date  of  the  per  Lord  Abinger,  C.  B. ;  Williams  v. 
writ,  may  also  be  computed.  Whitehead  Mostyn,  4  M.  &  W.  145.  And  see  Weld 
V.  Varnum,  14  Pick.  523.  In  some  of  the  v.  Bartlett,  10  Mass.  470;  Gerrish  v.  Ed- 
United  States,  the  rule  of  the  common  law,  son,  1  New  Hamp.  82  ;  Burrell  v.  Lithgow, 
that  the  whole  sum  must  be  given,  has  2  Mass.  526 ;  Smith  v.  Hart,  2  Bay, 
been  altered    by  statutes    abolishing   the  395. 


624  LAW   OF   EVroENCE.  [part  IV. 

worse  situation  than  he  would  have  been  in  had  the  officer  done 
his  duty,  the  jury  will  be  at  liberty,  and  it  will  be  their  duty,  to  see 
that  a  humane  or  mistaken  officer  is  not  made  to  pay  greater  dam- 
ages than  the  party  has  actually  suflfered  by  his  wrong.^  In  cases, 
therefore,  of  the  latter  description,  tlie  sheriff  has  been  permitted 
to  show,  in  mitigation  of  damages,  that  the  debtor  was  poor,  and 
unable  to  pay  the  debt ;  ^  or  that  he  might  still  be  arrested  as  ea- 
sily as  before,  the  sherifif  having  omitted  to  arrest  him  while  sick 
and  afflicted  ;^  or  that,  for  any  other  reason,  the  plaintifif  has  not 
been  damnified.^  If  the  action  is  for  an  escape  on  mesne  process, 
and  the  sheriff  afterwards  had  the  debtor  in  custody,  the  plaintiff 
cannot  maintain  the  action,  without  proof  of  actual  damages.^  In 
the  action  for  taking  insufficient  sureties,  the  plaintiff  can  recover 
no  more  against  the  sheriff  than  he  could  have  recovered  against 
the  sureties.^ 

1  Weld  V.  Bartlett,  10  Mass.  470,  473,  iff 's  sale,   brought  full   and  fair  auction 
per  Parker,  J.  prices,  and  what  those  prices  actually  were, 

2  Brooks  V.  Hoyt,  6  Pick.  468  ;  [Chase  and  that  the  sale  was  by  a  competent  auc 
V.  Keyes,  2  Gray,  214;  Ledyard  v.  Jones,  tioneer,  was  properly  rejected.] 

3  Selden  (N.  Y.)  550.]  6  pianck  v.  Anderson,  5  T.  R.  37,  con- 

8  Weld  V.  Bartlett,  10  Mass.  470.  firmed  in  Williams  v.  Mostyn,  4  M.  &  W. 

*  Baker  i-.  Green,  2  Bing.  317  ;  Potter  v.  145, 154,  where  Bakcri;.  Green,  2  Bing.  317, 

Lansing,  1  Johns.  215  ;  Kussell  v.  Turner,  is,  as  to  this  point,  overruled.     Sec   also 

7  Johns.  189  ;  Young  y.  Hosmer,  11  Mass.  Bales  v.  Wingticld,  4  Ad.  &  El.  580,  N.  S. 

89  ;  Xye  v.  Smith,  Id.  188  ;  Eaton  v-  Ogier,  "  Evans  v.  Brander,  2  H.  Bl.  547,  con- 

2    Greenl.    46.      [*  Shippen    i;.    Curry,   3  firmed  in  Baker   r.  Garratt,  3  Bing.    56. 

Met.  (Ky.)    184.     But  in  Cassin  i;.   Mar-  [In  an  action  against  an  officer  for  a  false 

shall,  18  Cal.  689,  in  an  action  against  a  return  on  an  execution,  the  damages  are 

sheriff  for  an  illegal  levy,  although  it  ap-  the  amount  ordered  to  be  collected  thereon, 

pears  tliat  the  plaintiff  was  himself  about  where  there  is  property  enough  to  levy  it 

to  have  sold  the  goods  levied  on   at  pub-  on.     He  will  not  be  permitted  to  say  that 

lie  auction,  it  was  held  that  evidence  of-  a  less  sum  was  due  on  the  judgment  than 

fered  by  tlie  defendant  to  show  that  the  that  directed   to  be  collected.     Bacon  » 

property,  when  sold  by  himself  at  sher-  Cropsey,  3  Selden  (N.  Y.)  195.] 


PART  IV.]  TENDER  525 


TENDER. 

[•  S  600.  Plea  of  tender  admits  debt,  insisting  on  the  fact  that  the  debtor  has  done  kO 
in  his  power  to  pay  it. 

601.  To  support  plea  of  tender  of  money,  defendant  must  prove  that  the  precise 

sum  or  more  was  actually  produced  and  offered  to  plaintiff  in  money  made 
legal  tender  by  statute. 

602.  Money  must  be  produced  and  actually  offered  to  creditor. 

60.3.  Production  dispensed  with  if  debtor  is  able  and  is  about  to  produce  it,  and 
creditor  declares  he  will  not  receive  it.     Money  must  be  at  hand. 

604.  If  more  tlmn  is  due  is  tendered,  debtor  must  remit  excess,  or  make  it  so  that 

creditor  may  take  therefrom  what  is  due  him. 

605.  Tender  must  be  unconditional. 

606.  Tender  to  an  agent  or  servant  authorized  to  receive  money  good. 

607.  At  common  law,  tender  must  be  at  the  time  the  money  became  due. 

608.  Plaintiff  may  avoid  plea  of  tender  by  subsequent  demand  and  refusal.     Bur- 

den on  him. 

609.  Tender  of  specific  articles  must  be  at  place  mentioned  in  contract  or  intended 

by  parties,  and  they  must  be  designated  and  set  apart. 

610.  Duty  of  debtor  when  goods  are  cumbrous,  and  no  place  designated  for  de- 

livery. 

611.  Rule  not  settled  as  to  place  of  delivery  when  creditor  changes  his  domicile 

after  designating  his  house  as  the  place  of  delivery. 
en  a.  Goods  must  be  tendered  in  such  packages  that  creditor  may  see  them.] 

§  600.  The  plea  of  tender  admits  the  existence  and  validity  of 
the  debt  or  duty,  insisting  only  on  the  fact  that  there  has  been  an 
offer  to  pay  or  perform  it.  And  though  the  contract  be  one  which 
the  statute  of  frauds  requires  to  be  in  writing,  yet  the  plea  of  ten- 
der dispenses  with  the  necessity  of  proving  it.^  The  general  propo- 
sition maintained  in  the  plea  is,  that  the  defendant  has  done  all 
that  was  in  the  power  of  any  debtor  alone  to  do,  towards  the  ful- 
filment of  his  obligation  ;  leaving  nothing  to  be  done  towards  its 
completion,  but  the  act  of  acceptance  on  the  part  of  the  creditor. 
If  the  tender  was  of  money,  it  is  pleaded  with  an  averment  that 
the  defendant  was  always  and  still  is  ready  to  pay  it,  and  the  mon- 
ey is  produced  in  court.     But  if  the  obligation  was  for  the  delivery 

1  Middleton   v.  Brewer,   1    Peake,   15.     cause  of  action  set  out  in  the  declaration. 
fSo  it  does  in  tort,  if  there  be  but  one     Bacon  v.  Charlton,  7  Cush.  581,  583.1 


526 


LAW   OF  EVIDENCE. 


[part  IV. 


of  specific  chattels,  other  than  money,  a  plea  of  the  tender  alone, 
without  an  averment  of  subsequent  readiness  to  perform,  is  suffi- 
cient ;  the  rule  requiring  only  the  averment  of  an  offer  and  readi- 
ness to  do  that  which  is  a  discharge  of  the  obligation.^ 

§  601.  To  support  the  issue  of  a  tender  oi  money,  it  is  necessary 
for  the  defendant  to  show  that  the  precise  sum,^  or  more,  was  ac- 
tually produced  in  current  money,  such  as  is  made  a  legal  tender 
by  statute,  and  actually  offered  to  the  plaintiff.^  But  if  a  tender  is 
made  in  bank-notes,  it  is  good,  if  the  want  of  its  being  in  current 


1  2  Roll.  Abr.  523;  Tout  temps  prist, 
A.  pi.  1 ,  3,  .5  ;  C.irley  v.  Vance,  1 7  Mass. 
392;  [Knox  v.  Light,  12  111.  86.]  [*  So 
where  the  mortgagor  of  lands,  after  the 
mortgage  falls  due,  but  before  foreelosure, 
tenders  to  the  holder  the  full  amount  due, 
which  the  latter  refuses  to  receive,  the 
lien  of  the  mortgage  is  discharged  thereby. 
Van  Husan  v.  Kanouse,  13  Mich.  303.] 

2  A  tender  of  part  of  an  entire  demand 
is  inoperative.  Dixon  v.  Clark,  .5  M.  G. 
&  S.  365;  5  Dowl.  &  L.  15.5;  [Smith  v. 
Anders,  21  Ala.  782.] 

3  The  current  money  of  the  United 
States,  which  is  made  a  legal  tender  by 
statute^  consists  of  all  the  gold  and  silver 
coins  of  the  United  States ;  together  with 
Spanish  milled  dollars  and  their  parts,  at 
the  rate  of  one  hundred  cents  for  a  dollar, 
weighing  not  less  than  seventeen  penny- 
weights and  seven  grains  ;  the  dollars  of 
Mexico,  Peru,  Chili,  and  Central  America, 
of  not  less  weight  than  four  hundred  and 
fifteen  grains  each,  at  the  same  rate ; 
those  restamped  in  Brazil,  of  the  like 
weight,  of  not  less  fineness  than  ten  ounces 
and  lifteen  pennyweights  of  pure  silver 
to  the  pound  troy  of  twelve  ounces  of 
standard  silver;  and  the  five-franc  pieces 
of  France,  of  not  less  fineness  than  ten 
ounces  and  sixteen  pennyweights  of  pure 
silver  to  the  like  pound  troy,  and  weigh- 
ing not  less  than  three  hundred  and  eighty- 
four  grains  each,  at  ninety-three  cents  each. 
Stat.  1837,  ch.  3,  §§  9,  10 ;  Stat.  1834,  ch. 
71,  §  1  ;  Stat.  1806,  ch.  22,  §  2.  Foreign 
gold  coins  ceased  to  be  a  legal  tender  after 
November  1,  1819,  by  Stat.  1819,  ch.  507, 
§  1.  Copper  cents  and  half-cents  are  es- 
tablished as  part  of  the  currency,  and  by 
im])lication  made  a  legal  tender,  by  Stat. 
1792,  ch.  39,  §  2.  [In  1851  the  coinage  of 
■'  three-cent  "  pieces  was  authorized,   and 


for  debts."  §  4  provides  that  "  the  coinage 
of  the  half-cent  .shall  cease."]  [*  By  re- 
cent legislation  of  Congress,  certain  notes 
issued  by  the  United  States  government 
are  made  legal  tender  for  certain  debts.] 
A  tender  of  the  creditor's  own  promissory 
note,  due  to  the  debtor,  is  not  good.  Gary 
V.  Bancroft.  14  Pick.  315;  Hallowell  and 
Augusta  Bank  v.  Howard,  13  Mass.  235. 
[A  tender  of  a  gross  sum  upon  several  de- 
mands, without  designating  the  amount 
tendered  upon  each,  is  sufficient.  Thetford 
V.  Hubbard,  22  Vt.  440. 

Where  a  person  designedly  absents  him- 
self from  home  for  the  fraudulent  purpose 
of  avoiding  a  tender,  he  is  estopped  from 
objecting  that  no  tender  was  made.  South- 
worth  V.  Smith,  7  Cush.  393  ;  Gilmore  v. 
Holt,  4  Pick.  258.  And  where  the  person 
whose  duty  it  is  to  make  the  tender  uses 
due  diligence,  but  is  unable  to  find  the 
person  to  wiiom  tlie  tender  should  be  made, 
or  any  person  authorized  to  act  in  iiis  be- 
half, he  accomplishes  all  the  law  requires. 
Southworth  v.  Smith,  rihi  supra.  And 
where  the  obligee  in  a  bond  was  to  "  tender 
a  conveyance,"  within  a  specified  time, 
and  within  that  time  went  to  the  house 
of  the  obligor  with  such  conveyance  duly 
executed,  but  did  not  tender  the  same, 
because  the  wife  of  the  obligor  informed 
him  that  the  obligor  was  out  of  the  State, 
and  he  in  fact  was  out  of  the  State,  it  was 
held  that  such  absence  excused  the  ob- 
ligee from  further  performance  of  his  part ; 
that  he  was  not  bound  to  inquire  if  the 
obligor  had  left  any  agent  to  act  for  him 
in  his  absence;  it  being  the  duty  of  the 
obligor  to  appoint  an  agent  to  act  for  him 
in  his  absence,  and  to  notify  the  obligee 
thereof.  Tasker  v.  Bartlett,  5  Cush.  359  - 
363.  See  also  Stone  v.  Sprague,  20  Barb. 
509 ;    Holmes   v.    Holmes,    12    lb.    137 


that  com  was  made  "  a  legal  tender  in  pay-     Hewry  v.  Raiman,  25  Penn.  State  R.  354.1 


ment  of  debts  for  all  sums  of  thirty  cents 
and  under.  Acts,  1850-1,  ch.  20,  §  11. 
The  Act  of  1856-7,  ch.  56,  §  3,  repeals 
"  all  former  acts  authorizing  the  currency 
of  foreign  gold  and  silver  coins,  and  de- 
claring the  same  a  legal  tender  in  payment 


[*  One  to  whom  tender  of  a  deed  is  made, 
and  who  refuses  it,  without  stating  where- 
in it  is  defective,  or  what  deed  he  will  take, 
cannot  afterwards  object  to  the  tender. 
Gilbert  v.  Hosier,  11  Iowa,  498.1 


PART  IV.]  TENDER.  t)27 

coins  is  waived ;  and  if  the  creditor  places  his  refusal  to  receive 
the  money  on  some  other  ground,  or  even  if  he  makes  no  objection 
to  the  tender  on  the  express  ground  that  it  is  in  bank-notes,  it  is 
held  a  waiver  of  this  objection. ^  So  if  the  tender  is  made  in  a 
bank-check,  which  is  refused  because  it  is  not  drawn  for  so  much 
as  the  creditor  demands,  it  is  a  good  tender.^ 

§  602.  It  must  also  appear,  that  the  money,  or  other  thing  ten- 
dered was  actually  produced  to  the  creditor.  It  must  be  in  sight, 
and  capable  of  immediate  delivery,  to  show  that,  if  the  creditor 
were  willing  to  accept  it,  it  was  ready  to  be  paid,^  If  it  be  in  bags, 
held  under  the  party's  arm,  and  not  laid  on  the  table  or  otherwise 
actually  offered  to  the  creditor,  it  is  not  sufficient.*  And  if  it  be 
in  the  debtor's  hand,  and  the  sum  is  declared,  and  it  is  offered  by 
way  of  tender,  it  is  good,  though  it  be  in  bank-notes,  twisted  in  a 
roll,  and  not  displayed  to  the  creditor.^  But  if  the  sum  is  not  de- 
clared,^ or  the  party  says  he  will  pay  so  much,  putting  his  hand  in 
his  pocket  to  take  it,  but  before  he  can  produce  it  the  creditor 
leaves  the  roora,'^  it  is  not  a  good  tender.  Great  importance  is 
attached  to  the  production  of  the  money,  as  the  sight  of  it  might 
tempt  the  creditor  to  yield,  and  accept  it.^ 

§  603.  The  production  of  the  money  is  dispensed  with,  if  the 
oarty  is  ready  and  willing  to  pay  the  sum,  and  is  about  to  produce 
t,  but  is  prevented  by  the  creditor's  declaring  that  he  will  not 
receive  it.^  But  his  bare  refusal  to  receive  the  sura  proposed,  and 
demanding  more,  is  not  alone  sufficient  to  excuse  an  actual 
tender,^''  The  money  or  other  things  must  be  actually  at  hand,  and 
ready  to  be  produced  immediately,  if  it  should  be  accepted ;  as, 

1  "Wri<rht  V.  Reed,  3  T.  R.  554  ;  Snow  v.  v.  Hurd,  6  Pick.  356  ;  Newton  v.  Galbraith, 

Perrv,  9  rick.  542  ;  Brown  v.  Saul,  4  Esp.  5  Johns.  1 19. 

267  ;' Tol'^lase  v.   Oliver,   2    C.  &  J.  15  ;  *  Bull.  N.  P.  155  ;  Wade's  case,  5  Co.  115. 

Warren  v.  Mains,  7  Johns.  476  ;  Towson  ^  Alexander  v.  Browa,  1  C.  &  P.  288. 

j;.  •  Havre  de  Grace  Bank,  6  H.  &  J.  53  ;  ^  jbid. 

Coxe  r.  State  Bank,  3  Halst.  72  ;  Bank  of  '^  Leatherdale  v.  Sweepstone,  3  C.  &  P 

the  United  States  v.  Bank  of  Georjria,  10  342. 

Wheat.  333;    [Cumminps  i-.  Putnam,  19  ^  Finch  v.  Brook,  1  Bing.  (N.  C.)  253, 

N.  H.  569  ;  Curtiss  v.  Greenbanks,  25  Vt.  per  Vauc^han,  J. 

536.1  [*  Evidence  of  the  waiver  of  a  ten-  ^  Black  i-.  Smith,  1  Peake,  88 ;  Read  v. 
Jer  by  the  opposite  party  is  competent  and  Goldring,  2  M.  &  S.  86  ;  Barker  v.  Pack- 
sufficient  to  support  the  averment  of  a  enhorn,  2.  Wash.  C.  C.  R.  142;  Calhoun 
tender.  Holmes  v.  Holmes,  9  N.  Y.  r.  Veehio,  3  Wash.  165  ;  Blighty.  Ashley, 
525.]  1  Pet.  C.  C.  R.  15  ;  Slingerland  v.  Morse, 

-  Jones  V.  Arthur,  4  Jur.  859  ;  8  Dowl.  8  Johns.  474  ;  Bellinger  v.  Kitts,  6  Barb. 

P.  C.  442,  S.  C.  S.  C.  R.  273  ;   [Hazard  v.  Loring,  10  Cush. 

8  Thomasv.  Evans,  10  East,  101  ;  Glass-  267,  269;  Parker  v.  Perkins,  8   lb.   319; 

cott  r.  Day,  5  Esp.  48  ;  Dickinson  y.  Shee,  [Meserole  i'.  Archer,   3   Bosworth,   376.] 


4  Esp.  68  ;  Bakeham  v.  Pooler,  15  Wend.     [*See  Brown  v.  Simons,  45  N.  H.  211.] 
537  ;  Kraus  v.  Arnold,  7  Moore,  59 ;  Breed         i'^  Dunham  v.  Jackson,  6  Wend.  22, 


528  LAW   OF  EVIDENCE.  [PART  IV. 

for  example,  if  it  be  in  the  next  room,  or  up  stairs ;  for  if  it  be 
a  mile  off,  or  can  be  borrowed  and  produced  in  five  minutes,  or, 
being  a  bank-check,  it  be  not  yet  actually  drawn,  it  is  not  suffi- 
cient.i  The  question  whether  the  production  of  the  money  has 
been  dispensed  with  is  a  question  for  the  jury ;  and  if  they  find 
the  facts  specially,  but  do  not  find  the  fact  of  dispensation,  the 
court  will  not  infer  it.^ 

§  604.  If  the  debtor  tendered  a  greater  sum  than  was  due,  it 
must  appear  that  it  was  so  made  as  that  the  creditor  might  take 
therefrom  the  sum  that  was  actually  due  to  him ;  as,  if  twenty 
dollars  wore  tendered,  when  only  fifteen  were  due ;  or  else  it  must 
appear  that  the  debtor  remitted  the  excess.^  And  therefore  it  has 
been  held,  that,  where  the  tender  is  to  be  made  in  bank-notes,  a 
tender  of  a  larger  note  than  the  sum  due  is  bad.*  But  if  the 
creditor  does  not  object  to  it  on  that  account,  but  only  demands  a 
larger  sum,  the  tender  will  be  good,  though  the  debtor  asked  for 
change.^ 

§  605.  It  must  also  appear  that  the  tender  was  absolute;  for  if 
it  be  coupled  with  a  condition,  as,  for  example,  if  a  larger  sum 
than  is  due  be  offered,  and  the  creditor  be  required  to  return  the 
change ;  ^  or  if  the  sum  be  offered  in  full  of  all  demands ;  ^  or 
if  it  be  on  condition  that  the  creditor  will  give  a  receipt  or  a 
release ; «  or  if  it  be  offered  by  way  of  boon,  with  a  denial  that  any 
debt  is  due  ; »  or  if  any  other  terms  be  added,  whicli  the  acceptance 
of  the  money  would  cause  the  other  party  to  admit,  the  tender  is 
not  good.i<^    But  if  the  creditor  places  his  refusal  to  receive  the 

1  Harding  v.  Davies,  2  C.  &  P.  77  ;  Harvey,  3  Bing.  304;  Evans  v.  Judkins, 
Dunham  w.  Jackson,  6  Wend.  22,  33,  34;  4  Campb.  156;  Wood  v.  Hitchcock,  20 
Breed  v.  Hnrd,  6  Pick.  356.  And  see  Sea-  Wend.  47  ;  Robinson  v.  Ferredav,  8  C.  &. 
right  V.  Calbraith,  4  Dall.  325,  327  ;  Ful-  P.  752. 

ler  V.  Little,  7  N.  Hamp.  535  ;  Brown  v.  8  Ryder  r.  Ld.  Townsend,  7  D.  &  R.  119, 

Gilmore,  8  Greenl.  107.  per  Bayley,  J.  ;  Laing  v.  Meader,  1  C.  & 

2  Finch  V.  Brook,  1  Bing.  N.  C.  253.  P.  257  ;  Griffith  v.  Hodges,  Id.  419  ;  Thay- 
8  Wade's  case,  5  Co.  115;  Douglas  v.  er  v.  Brackett,  12  Mass.  450;  Glasscott  v. 

Patrick,  3  T.  R.  683  ;  Hubbard  v.  Chenan-  Day,  5  Esp.  48  ;  Loring  v.  Cook,  3  Pick, 

go   Bank,    8    Cowen,   88,    101  ;   Dean   v.  48 ;    Hepburn    v.    Auld,    1    Cranch,  321  ; 

James,  4  B.  &  Ad.  546  ;  Bevan  v.  Rees,  7  Higham  v.  Baddely,  Gow,  213.     But  see 

Dowl.  P.  C.  510;    Thorpe  v.  Burgess,  4  Richardson  v.  Jackson,  8  M.  &  W.  298; 

Jur.  799  ;  8  Dowl.  P.  C.  603.  Finch  v.  Miller,  5  M   G.  &  S.  428 ;  [Rich- 

*  Betterbee  v.  Davis,  3  Campb.  70.  ardson  v.  Boston  Chem.  Lab.,  9  Met.  42.] 

6  Black  V.  Smith,  1  Peakc,  88 ;  Saunders         9  Simmons  v.  Wilmott,  3  Esp.  94,  per 

V.  Graham,  Gow,  121;   Cadman  v.  Lub-  Ld.  Eldon. 
bock,  5  D.  C&,  R.  289.  lo  Hastings  v.  Thorley,  8  C.  &  P.  573, 

6  Robinson  i;.  Cook,  6  Taunt.  336 ;  Bet-  per  Ld.  Abinger ;  Huxham  v.    Smith,   2 

terbee  v.  Davis,  3  Campb.  70.  Campb.  21  ;  Jennings  v.  Major,  8  C.  &  P. 

T  Sutton  V.  Hawkins,  8  C.  &  P.   259;  61  ;  Brown  v.  Gilmore,  8  Greenl.  187.    But 

Mitchell  V.  King,  6  C.  &  P.  237;  Chemi-  if  the  condition  be  that  the  creditor  shall  do 

nant  v.  Thornton.  2  C.  &  P.  50  ;  Strong  v.  an  act  which  he  is  bound  by  law  to  do  up- 


PART  IV.]  TENDER.  529 

money  on  some  other  ground  than  because  it  is  coupled  with  a 
condition,  this  is  evidence  of  a  waiver  of  that  objection,  to  be  con- 
sidered by  the  jury ;  ^  whose  province  it  is  to  decide  whether  a 
tender  was  made  conditionally  or  not.^  If  there  be  several  debts 
due  from  divers  persons  to  the  same  creditor,  and  a  gross  sum  be 
tendered  for  all  the  debts,  this  is  not  a  good  tender  for  any  one  of 
them.^  But  if  there  be  several  creditors,  who  are  all  present,  and 
the  debtor  tenders  a  gross  sum  to  them  all,  sufficient  to  satisfy  all 
their  demands,  which  they  all  refuse,  insisting  that  more  is  due, 
it  is  a  good  tender  to  each  one.* 

§  606.  The  tender  must  be  made  to  the  creditor  himself,  or  to 
his  agent,  clerk,  attorney,  or  serimnt,  who  has  autliority  to  receive 
the  money .^  A  tender  to  the  attorney  at  law,  to  whom  the  de- 
mand has  been  intrusted  for  collection,  or  to  his  clerk  or  other 
person  liaving  charge  of  his  office  and  business  in  his  absence,  is 
good,  unless  the  attorney  disclaims  his  authority  at  the  time.^  And 
generally,  if  a  tender  be  made  to  a  person  whom  the  creditor  per- 
mits to  occupy  his  place  of  business,  in  the  apparent  character  of 
his  clerk  or  agent,  it  is  a  good  tender  to  the  creditor.'^  So,  if 
it  is  sent  by  the  debtor's  house  servant,  who  delivers  it  to  a  ser- 
vant in  the  creditor's  house,  by  whom  it  is  taken  in,  and  an 
answer  returned  as  from  the  master,  this  is  admissible  evidence  to 
the  jury  in  proof  of  a  tender.^ 

§  607.  As  to  the  time  of  tender,  it  must,  in  all  cases,  by  the 
common  law,  be  made  at  the  time  the  money  became  due ;  a 
tender  made  after  the  party  has  broken  his  contract  being  too 

on  payment  of  the  money,  it  is  a  frood  ten-  left  the  demand  with  an  attorney  for  col- 
der. Saunders  v.  Frost,  5  Pick.  259,  270.  let-tion,  still  the  tender  to  him  is  a  good 
A  tender  made  "  under  protest "  is  abso-  tender  to  tlie  principal.  Moffat  v.  Parsons, 
Inte,  and  a  pood  tender.    Manning  v.  Lnnn,  5  Taunt.  307. 

2  C.  &  K.  13.     So,  if  a  tender  is  made  as  «  Wilmot  v.    Smith,  3    C.    &  P.  453  ; 

the  wjiolc  that  is  due,  it  is  sufficient.     Hen-  Crozcr  v.  Pilling,  4  B.  &  C.  29  ;  Bingham 

wood  V.  Oliver,  1  Ad.  &  El.  409,  N.  S. ;  v.  AUport,  1  Ncv.  &  Man.  398.     It  is  not 

Ball  V.  Parker,  2  Dowl.  345,  N.  S.  ;  Bow-  necessary  to  tender  also  the  amount  of  the 

en  V,  Owen,  11  Jur.  972  ;  11  Ad.  &  El.  130,  attorney's  charge  for  a  letter  to  the  debtor, 

N.  S.  demanding  payment.      Kirton  i\   Braith- 

1  Supra,  §§  601,  604;  Richardson  v.  waite,  1  M.  &  "W.  310.  [Notwithstanding 
Jackson,  8  M.  &  W.  298 ;  9  Dowl.  P.  C.  the  disclaimer,  if  he  be  in  fact  the  attorney 
715,  S.  C. ;  Eckstein  v.  Reynolds,  7  Ad.  of  the  creditor  at  the  time,  it  is  a  good 
&K1.  80;  Cole  r.  Blake,  1  Peake,  179.  tender.      Mclniffe  v.   Wheelock,  1    Gray, 

2  Marsden  v.  Goode,  2  C.  &  K.  133;  600,  604.  A  tender  of  the  amount  due, 
Eckstein  v.  Re\Tiolds,  7  Ad.  &  El.  80.  and  the  cost  of  the  writ,  if  a  writ  has  been 

*  Strong  V.  "Harvey,  3  Bing.  304.  [See  made,  is  sufficient,  although  the  writ  has 
Thetford  v.  Hubbard,  22  Vt.  440.]  been   sent  away  for  service,  if  there  is   a 

*  Bhick  V.  Smith,  1  Peake,  88.  reasonable  time   to   recall   it  before   it  is 
5  Goodland  v.  Bicwith,  1  Campb.  477.     served.     Call  v.  Lothrop,  39  Maine,  434.] 

If  the  clerk  or  servant  is  directed  not  to  re-         "^  Barrett  v.  Deere,  1  M.  &  M.  200- 
ceive  the  money,  because  his  master  baa        *  Anon.  1  Esp.  349. 
VOL.  II.  34 


630  LAW  OF  EVIDENCE.  [PABT  IV. 

late,  and  therefore  not  pleadable  in  bar  of  the  action  ;  ^  though  it 
stops  the  interest,  and,  by  leave  of  court,  the  money  may  be 
brought  in  upon  the  common  rule.  But  where  the  defendant  is 
not  in  mora,  as,  for  example,  if  no  day  of  payment  was  agreed 
upon,  and  the  money  has  not  been  demanded,  or  if  amends  arc  to 
be  offered  for  an  involuntary  trespass,  proof  of  a  tender,  made  at 
any  time  before  the  suit  is  commenced,  is  sufficient  to  support  the 
plea  of  tender.^  In  the  case  of  damage-feasant,  a  tender  is  good, 
if  made  at  any  time  before  the  beasts  are  impounded,  though  it  be 
after  they  were  distrained.^ 

§  608.  The  plaintiff  may  avoid  the  plea  of  a  tender  of  money, 
by  replying  a  subsequent  demand  and  refusal ;  the  burden  of  prov- 
ing which,  if  traversed,  lies  upon  him.  And  he  must  show  that 
the  demand  was  made  of  the  precise  sum  mentioned  in  the  repli- 
cation, a  variance  herein  being  fatal.'*  He  must  also  prove  that 
the  demand  was  made  either  by  himself  in  person,  or  by  some  one 
authorized  to  receive  the  money  and  give  a  discharge  for  it.^  A 
demand  made  by  letter,  to  which  an  answer  promising  payment 
was  returned,  was  in  one  case  held  sufficient ;  ^  but  this  has  since 
been  doubted,  on  the  ground,  that  the  demand  ought  to  be  so 
made  as  to  afford  the  debtor  an  opportunity  of  immediate  compli- 
ance with  it.7  If  there  be  two  joint  debtors,  proof  of  a  demand 
made  upon  one  of  them  will  support  the  allegation  of  a  demand 
upon  both.^ 

§  609.    Specific  articles  are  to  be  delivered  at  some  particular 
place,  and  not,  like  money,  to  the  person  of  the  creditor  wherever 
found.     If  no  place  is  expressly  mentioned  in  the  contract,  the 
place  is  to  be  ascertained  by  the  intent  of  the  parties,  to  be  collect 
ed  from  the  nature  of  the  case,  and  its  circumstances.^     If  the 

1  Hume  V.  Peploe,  8  East,  168,  170;  *  Rivers  v.  Griffiths,  5  B.  &  Aid.  630; 
City  Bank  v.  Cutter,  3  Pick.  414,  418;  Spybev  v.  Hide,  1  Campb.  181  ;  Coore  v. 
Sut!blk  Bank  v.  Worcester  Bank,  5  Pick.  Callaway,  1  Esp.  115;  [Thetford  i'.  Hub- 
108  ;  Dewey  v.  Humphrey,  Id.  187  ;  Giles  bard,  22  Vt.  440.]  \*  The  plea  of  tender 
V.  Harris,  1  Ld.  Raym.  254  ;  Savery  v.  Goe,  must  be  accompanied  with  apro/ert  in  curia ; 
3  Wash.  140;  Gould  v.  Banks,  8  Wend,  but  the  failure  to  pay  money  into  court  un- 
562.    Alitor  in  Conneci/cM^,  Tracy  f.  Strong,  der  a   plea  of  tender  is  not  a  traversable 

2  Conn.  659.  In  several  of  the  United  part  of  the  plea,  to  be  tried  as  a  question  of 
States  provision  has  been  made  by  statute  fact  to  the  jury.  It  is  an  irregularity  of 
for  a  tender  of  the  debt  and  costs,  even  practice.  Storer  v.  McGaw,  11  Allen, 
after   action  brought.     Rev.  Stat.  Massa-  527.] 

chusetts,  ch.   100,   §§   14,    15;  Rev.    Stat.  6  Coles  u.  Bell,  1  Campb.  478,  n. ;  Coore 

Maine,  p.  767.    And  see  Hay  v.  Ousterout,  i'.  Callaway,  1  Esp.  115  ;  Supra,  §  606. 

3  Ham.  Ohio,  585.  6  Hayward  v.  Hague,  4  Esp.  93. 

2  Watts  V.  Baker,  Cro.  Car.  264.  7  Edwards  v.  Yeates,  Ry.  &  M.  360. 
'  Pilkington  v.  Hastings,  Cro.  El.  813  ;  ^  pdrse  v.  Bowles,  1  Stark.  323. 

The  Six  Carpenters'  case,  8  Co.  147.  ^  2  Kent,  Comm.  505.  506  ;  Poth.  Obi. 


PART  IV.]  TENDER.  531 

contract  is  for  the  delivery  of  goods,  from  the  vendor  to  the  vendee 
on  demand,  the  vendor  being  the  manufacturer  of  the  goods,  or  a 
dealer  in  them,  and  no  place  being  expressly  named,  the  manu- 
factory or  store  of  the  vendor  will  be  understood  to  be  the  place 
intended,  and  a  tender  there  will  be  good.     And  if  the  specific 
articles  are  at  another  place  at  the  time  of  sale,  the  place  where 
they  are  at  that  time  is  generally  to  be  taken  as  the  place  of  deliv- 
ery.i     But  where  the  contract  is  for  the  payment  of  a  debt  in  spe- 
cific articles,  which  are  portable,  such  as  cattle,  and  the  like,  at  a 
time  certain,  but  without  any  designation  of  the  place,  in  the  ab- 
sence of  other  circumstances  from  which  the  intent  of  the  parties 
can  be  collected,  the  creditor's  place  of  abode  at  the  date  of  the 
obligation  will  be  understood  as  the  place  of  payment.^     And  on 
the  same  principle  of  intention,  a  note  given  by  a  farmer,  payable 
in  '■'-farm  produce,'^  without  any  designation  of  time  or  place,  is 
payable  at  the  debtor's  farm.     Indeed  the  same  rule  governs,  in 
the  case  of  a  similar  obligation  to  pay  or  deliver  any  other  porta- 
ble specific  articles  on  demand  ;  for  the  obligation  being  to  be  per- 
formed on  demand,  this  implies  that  the  creditor  must  go  to  the 
debtor  to  make  the  demand,  before  the  latter  can  be  in  default.^ 
But  wherever  specific  articles  are  tendered,  if  they  are  part  of  a 
larger  quantity,  tliey  should  be  so  designated  and  set  apart  as  that 
the  creditor  may  see  and  know  what  is  offered  to  be  his  own.* 

§  610.  If  the  goods  are  cumbrous^  and  the  place  of  delivery  is 
not  designated,  nor  to  be  inferred  from  collateral  circumstances, 
the  presumed  intention  is,  that  they  were  to  be  delivered  at  any 
place  which  the  creditor  might  reasonably  appoint ;  and  accord- 
ingly it  is  the  duty  of  the  debtor  to  call  upon  the  creditor,  if  he  is 
within  the  State,  and  request  him  to  appoint  a  place  for  the  deliv- 
ery of  the  goods.  If  the  creditor  refuses,  or,  which  is  the  same  in 
effect,  names  an  unreasonable  place,  or  avoids,  in  order  to  prevent 
the  notice,  the  right  of  election  is  given  to  the  debtor  ;  whose  duty 
it  is  to  deliver  the  articles  at  a  reasonable  and  convenient  place, 
giving  previous  notice  thereof  to  the  creditor  if  practicable.  And 
if  the  creditor  refuses  to  accept  the  goods  when  properly  tendered, 

No.  512  ;  Goodwin  v.  Holbrook,  4  Wend.  Contracts,  pp.  28,  29,  30,  49 ;  Lobdell  v. 

377  ;  Howard  v.  Miner,  2  Applet.  325.  Hojikins,  5  Cowen,  516  ;  Goodwin  v.  Hol- 

1  Ibid.  brook,  4  Wend.  .380. 

2  Ibid. ;  Chipman  on  Contracts,  pp.  24,  *  Veazey  v.  Harmony,  7  Grccnl.  91  ; 
25  26  ;  Goodwin  r.  Holbrook,  4  Wend.  377,  [McJilton  v.  Sinizcr,  18  Mis.  (3  BennettJ 
380.  Ill] 

«  2   Kent,   Comm.   508;    Chipman  on 


532  LAW   OF  EVIDENCE.  [PABT  IV. 

or  is  absent  at  the  time,  the  property,  nevertheless,  passes  to  him, 
and  the  debtor  is  forever  absolved  from  the  obligation.^ 

§  611.  By  the  Roman  law,  where  the  house  or  shop  of  the  cred- 
itor was  designated  or  ascertained  as  the  intended  place  of  pay- 
ment, and  the  creditor  afterwards  and  before  payment  changed  his 
domicile  or  place  of  business  to  another  town  or  place,  less  conven- 
ient to  the  debtor,  the  creditor  was  permitted  to  require  payment 
at  his  new  domicile  or  place,  making  compensation  to  the  debtor 
for  the  increased  expense  and  trouble  thereby  caused  to  him. 
But  by  the  law  of  France,  the  debtor  may  in  such  case  require 
the  creditor  to  nominate  another  place,  equally  convenient  to  the 
debtor ;  and  on  his  neglecting  so  to  do,  he  may  himself  appoint 
one  ;  according  to  the  rule,  that  7iemo,  alterius  facto,  prcegravari 
debet?'  Whether,  in  the  case  of  articles  not  portable,  but  cum- 
brous, such  removal  of  domicile  may,  at  common  law,  be  consid- 
ered as  a  waiver  of  the  place,  at  the  election  of  the  debtor,  does 
not  appear  to  have  been  expressly  decided.^ 

§  611  a.  In  regard  to  the  manner  of  tender  of  goods,  it  is  well 
settled  that  a  tender  of  goods  does  not  mean  an  offer  of  packages 
containing  them  ;  but  an  offer  of  those  packages,  under  such  cir- 
cumstances that  the  person  who  is  to  pay  for  the  goods  shall  have 
an  opportunity  afforded  him,  before  he  is  called  upon  to  part  with 
his  money,  of  seeing  that  those  presented  for  his  acceptance  are 
in  reality  those  for  which  he  has  bargained.* 

1  2  Kent,  Coram.  507,   508,  509  ;   Co.  the  decision  requires,  it  not  being  necessa- 

Lit.  210  6;  Aldrich  u.  Albee,  1   Greenl.  ry  for  the  plaintiff,  in  that  case,  to  aver  any 

120;  Howard  v.  Miner,  2  Applet.  R.  325.  readiness  to  receive  the  goods,  at  any  place, 

Chipman  on  Contracts,  pp.  51  -  56  ;  Lamb  as  the  contract  was  for  the  payment  of  a 

V.  Lathrop,  13  Wend.  95.    Whether,  if  the  sum  of  money,  in  specific  articles,  on  or 

creditor  is  out  of  the  State,  no  place  of  de-  before  a  day  certain, 

livery  having  been  agreed  upon,  this  cir-  ^  Poth.  on  Oblig.  Nos.  238,  239,  513. 

cumstance  gives  to  the  debtor  the  right  of  ^  See  Howard  v.  Miner,  2  Applet.   R. 

appointing  the  place,  qucere ;  and  see  Bix-  325,  330. 

by  V.  Whitney,  5  Greenl.  192;  in  which,  *  Isherwood  v.  Whitmore,  11  M.  &  W. 

however,  the  reporter's  marginal  note  seems  347,   350.      Ard  see   10  M.   &  W.  757, 

to  state  the  doctrine  a  little  broader  than  S.  C. 


PART  IV.]  TRESPASS.  533 


TRESPASS. 

[•  §  612.  Evidence  in  actions  of  trespass  upon  property  alone  considered  in  this  chapter. 

613.  Gist  of  the  action  is  the  injury  done  to  plaintiff's  possession.     What  plaintiff 

must  prove. 

614.  Proof  of  actual  or  constructive  possession  in  plaintiff  suflBcient. 

615.  General  owner  has  constructive  possession  as  against  his  bailee  or  tenant  who 

has  violated  his  trust  by  destroying  the  thing  bailed. 

616.  General  owner  who  has  conveyed  to  another  the  exclusive  right  of  present  pos- 

session and  enjoyment  cannot  maintain  trespass. 

617.  Partition  fences  presumed  to  be  the  common  property  of  adjoining  proprietors. 
618  .  Actual,  exclusive  possession  by  plaintiff,  though  by  wrong,  sufficient  to  sup- 
port action  against  stranger  without  title  or  authority. 

618  a.  In  trespass  7uare  clausum  fregit,  boundaries  of  close  must  be  proved  as  laid. 

619.  Proof  of  mere  right  of  entry  will  not  support  plaintiff^s  averment  of  posses- 

sion. 

620.  If  animals yeroE  tuiturce  are  the  subject  of  this  action,  plaintiff  must  show  that 

he  has  captured  them. 
621    Plaintiff  must  prove  that  defendant  committed  the  injury  by  force. 

622.  Plaintiff  need  not  prove  wrongful  intent  in  defendant. 

623.  Act  must  be  done  with  force  directly  applied. 

624.  Allegation  of  time  ordinarily  not  material.     Exceptions. 

625.  General  issue  is  not  guilty.    Everything  admitting  the  defendant  to  have  been 

prima  facie  a  trespasser  must  be  specially  pleaded. 

626.  Plea  of  liberum  tenementum  raises  question  whether  close  described  was  defend- 

ant's freehold  or  not, 

627.  Plea  of  license  supported  by  license  in  law  as  well  as  in  fact     Circumstances 

from  which  license  is  inferred. 

628.  What  must  be  specially  replied. 

629.  Wliere  trespass  is  justified  under  legal  process,  party  must  prove  every  mate- 

rial fact  of  the  authority  under  which  he  justifies. 

630.  Wliat  defendant  must  prove  when  he  justifies  killing  plaintiffs  property  in 

defence  of  his  own. 

631.  Proof  to  support  right  of  way. 

632.  If  right  of  way  or  otlier  easement  is  pleaded,  plaintiff  must  specifically  traT- 

erse  the  right  as  claimed. 

633.  All  matters  of  fact  pleaded  in  justification  may  be  disproved  by  plaintiff  under 

replication  de  injuria  sua  absque  tali  causa. 

634.  All  matters  which  confess  and  avoid  must  be  specially  pleaded. 

635.  Practice  when  plaintiff  makes  new  assignment. 

635  a.  Value  of  use  of  property  while  plaintiff  is  deprived  of  it  estimated  in  the 
damages.    Keturn  of  property  admissible  in  mitigation  of  damages.] 


684  LAW   OF   EVIDENCE,  [PART  IV. 

§  612.  The  evidence  in  actions  of  trespass  against  the  person 
having  already  been  considered,  under  the  head  of  Assault  and 
Battery,  it  remains  in  this  place  to  treat  of  the  evidence  applicable 
to  actions  of  trespass  upon  property,  whether  real  or  personal. 

§  613.  Though  the  right  of  property  may  and  often  does  como 
in  controversy  in  this  action,  yet  the  gist  of  the  action  is  the  injury 
done  to  the  plaintifif's  possession}  The  substance  of  the  declara- 
tion therefore  is,  that  the  defendant  has  forcibly  and  wrongfully 
injured  the  property  in  the  possession  of  the  plaintiff;  and  under 
the  gejieral  issue  the  plaintiff  must  prove,  (1.)  that  the  property 
was  in  his  possession  at  the  time  of  the  injury,  and  this  rightfully, 
as  against  the  defendant ;  and  (2.)  that  the  injury  was  committed 
by  the  defendant  with  force. 

§  614.  (1.)  The  possession  of  the  plaintiff  may  be  actual  or 
constructive.  And  it  is  constructive^  when  the  property  is  either 
in  the  actual  custody  and  occupation  of  no  one,  but  rightfully 
belongs  to  the  plaintiff;  or  when  it  is  in  the  care  and  custody  of 
his  servant,  agent,  or  overseer,  or  in  the  hands  of  a  bailee  for 
custody,  carriage,  or  other  care  or  service,  as  depositary,  man- 
datary, carrier,  borrower,  or  the  like,  where  the  bailee  or  actu- 
al possessor  has  no  vested  interest  or  title  to  the  beneficial  use 
and  enjoyment  of  the  property,  but,  on  the  contrary,  the  owner 
may  take  it  into  his  own  hands,  at  his  pleasure.  Where  this  is 
the  case,  the  general  owner  may  sue  in  trespass,  as  for  an  iiyury 
to  his  own  actual  possession,  and  this  proof  will  maintain  the 
averment.2  The  general  property  draws  to  it  the  possession, 
where  there  is  no  intervening  adverse  right  of  enjoyment.  And 
this  action  may  also  be  maintained  by  the  actual  possessor,  upon 
proof  of  his  possession  de  facto,  and  an  authority  coupled  with  an 

1  [To  constitute  a  trespass  there  must  Rooty.  Chandler,  10  Wend.  110;  Oser  u. 
be  a  disturbance  of  the  plaintiff's  posses-  Storms,  9  Cowen,  687 ;  Wickham  v.  Free- 
Bion ;  which  in  t^e  ease  of  personal  prop-  man,  12  Johns.  183;  Smith  v.  Millcs,  4 
erty  may  be  done  by  an  actual  taking,  a  T.  R.  480 ;  Corfield  v.  Coryell,  4  Wash, 
physical  seizing,  or  taking  hold  of  the  387;  Hingham  ?>.  Sprague,  15  Pick.  102; 
goods,  removing  them  from  their  owner,  Starry.  Jackson,  11  Mass.  519;  Walcott 
or  by  exercising  a  control  or  authority,  v.  Pomeroy,  2  Pick.  121  ;  [Warren  v. 
over  them  inconsistent  with  their  owner's  Cockran,  10  Foster  (N.  H.)  379;  Heath 
possession.  Holmes  v.  Doane,  3  Gray,  v.  West,  8  lb.  101;  Schloss  v.  Cooper,  1 
329,  330;  Coffin  v.  Field,  7  Gush.  355;  Williams  (Vt.)  623;  Foster  v.  Pettibone, 
Codman  v.  Freeman,  3  lb.  306.]  20  Barb.  350 ;  Bailey  v.  Massey,  2  Swan 

2  1  Chitty  on  Plead.  188,  195  (7th  (Tenn.)  167;  Browning  v.  Skillman,  4 
edit.);  Lotan  v.  Cross,  2  Gampb,  464;  Zabr.  351;  Thomas  v.  Snyder,  23  Penn. 
Bertie  v.  Beaumont,  16  East,  33  ;  Aikin  v.  State  R.  515.  But  prior  constructive  pos- 
Buck,  1  Wend.  466 ;  Putnam  v.  Wyley,  session  of  land  must  yield  to  subsequent 
8  Johns.  432;  Thorp  v.  Burling,  11  Johns,  adverse  possession.  Davis  v.  White,  1 
285;  Hubbellu,  Rochester,  8  Cowen,  115;  Williams  (Vt.)  751,] 


PART  IV.]  TRESPASS.  53o 

interest  in  the  thing,  as  carrier,  factor,  pawnee,  or  sheriff.^  A 
tenant  at  will,  and  one  entitled  to  the  mere  profits  of  the  soil,  or 
vestura  terrce,  with  the  right  of  culture,  may  also  sue  in  trespass, 
for  an  injury  to  the  emblements,  to  which  he  is  entitled.^ 

§  615.  The  general  owner  has  also  a  coiutructive  possession,  as 
against  his  bailee  or  tenant,  who,  having  a  special  property,  ha." 
violated  his  trust  by  destroying  that  which  was  confided  to  him. 
Thus,  if  the  bailee  of  a  beast  kill  it,  or  if  a  joint-tenant  or  tenant 
in  common  of  a  chattel  destroy  it,  or  if  a  tenant  at  will  cuts  down 
trees,  the  interest  of  the  wrong-doer  is  thereby  determined,  and 
the  possession,  by  legal  intendment,  immediately  reverts  to  the 
owner  or  cotenant,  and  proof  of  the  wrongful  act  will  maintain  the 
allegation  that  the  thing  injured  was  in  his  possession.^  So  if  one 
enters  upon  land,  and  cuts  timber  under  a  parol  agreement  for 
the  purchase  of  the  land,  which  he  afterwards  repudiates  as  void 
under  the  statute  of  frauds,  his  right  of  possession  also  is  thereby 
avoided  ab  initio,  and  is  held  to  have  remained  in  the  owner,  who 
may  maintain  trespass  for  cutting  the  trees.*  And  generally, 
where  a  right  of  entry,  or  other  right  of  possession,  is  given  by 
law,  and  is  afterwards  abused  by  any  act  of  unlawful  force,  tho 

1  Wilbraham  i'.  Snow,  2  Saiind.  47  ;  the  administrator.  Palmer  r.  Stevens,  1' 
Id  47  a,  b,  note  (1),  by  Williams;  Col-  Cush.  147,  150.  See  also  Wentworth  v. 
will  V.  Reeves,  2  Cumpb.  575.  [See  also  Blanchard,  37  Maine,  14  ;  Bigelow  v.  Hill- 
Leishcrncss  v.  Bcrrv,  38  Maine,  80.]  man,   lb.   52 ;    Blaisdell    v.   Roberts,   lb. 

2  Co.  Litt.  4  6;' Wilson  v.  Mackrcth,  3  239] 

Burr.  1824  ;  Crosby  i-.  Wadsworth,  6  East,  »  Qq  Ljtt,  57  „  ;  Id.  200  n,  h ;  Countess 

602;  Stammers   i'.'  Dixon,    7  East,  200;  of  Salop  i'.  Crompton,  Cro.  El.  777,  784 ; 

Stewarts.  Doughty,  9  Johns.  108;  Stultz  5    Co.    13,    S.    C. ;   Phillips   r.  Covert,  7 

V.  Dickev,  5  Binn.  285;  Austin  v.  Sawyer,  Johns.   1  ;  Erwin  v,  Olmstead,  7  Cowen, 

9  Cowen,  39  ;  [Kellcnberger  v.  Sturtevant,  229  ;  Campbell  1;.  Procter,  6    Greeiil.  12  ; 

7  Cush.   467.     A  mortgagee,  not   in  pos-  Daniels  v.  Pond,  21   Pick.  367  ;  Allen  v. 

session,  may  maintain  trespass  against  one  Carter,  8  Pick.  175  ;  Keay  v.  Goodwin,  16 

who,  under' authority  from  the  mortgagor,  Mass.  1.    Trespass  will  lie  by  one  tenant  in 

removes  a  building  erected  on  the  land  by  common   against  another,  for  any  act  of 

the  mortgagor  after  the  execution  of  the  permanent  injury  to  the  inheritance,  such 

mortgage;  Cole  v.  Stewart,  11  Cush.  181  ;  as   making  pits'in  the  common,   di^'ging 

and  against  the  mortgagor  for  cutting  and  turfs,  and  the  like,  when  not  done  in  the 

carrying  to  market  timber-trees   standing  lawful   exercise   of  a   right  of   common. 

on  the  premises.     Page  v.   Robinson,    10  Wilkinson  v.  Haggarth,  11  Jur.  104.     A 

Cush.  99,  103.     See  also  White  !•.  Living-  tenant   at    A'ill,   by   refusing   to   quit   the 

ston,    10    lb.  259;    Northampton   Paper  premises,  Decomes  a  trespasser.     Ellis   v. 

Mills.   &c   1-.  Ames,   8  Met.  1  ;  Perrv  v.  Paige,  1  Pick.  43;  Rising  v.  Stannard,  17 

Chandler,  2  Cush.  237.     The  administra-  Mass.    282.     [If  the   bailee  of  a  chattel, 

tor  of  a  mortgagee  of  real  estate  who  has  who  has  no  right,  as  against  the  bailor,  to 

obtained  judgment  and  possession  for  fore-  retain  or  dispose  of  it,  mortgage  it  as  se- 

closure  can   maintain  ticspass  against  an  curity  for  his  own  debt,  and  the  mortgagee 

heir-at-law  of  the   mortgagee   for  cutting  take  possession  under  the  mortgage,  the 

and  carrying  away  wood  and  timber  from  bailor  may  maintain  trespass  against  the 

the   mortgaged    premises,   the   possession  mortgagee   without  a  pre%ious    demand, 

during  the  time  necessary  to  foreclose  the  Stanley  r.  Gaylord,  1  Cush.  536.] 

DJortgage  being  wholly  the  possession  of  *  Suffern  v.  Townsend,  9  Johns.  35. 


636  LAW   OF  EVIDENCE.  [PART  IV. 

party  is  a  trespasser  ah  initio ;'^  but  if  the  wrong  consists  merely 
in  the  detention  of  chattels,  beyond  the  time  when  they  ought  to 
have  been  returned,  the  remedy  is  another  form  of  action.^ 

§  616.  But  where  the  general  owner  has  conveyed  to  another 
the  exclusive  right  of  present  possession  and  enjoyment,  retaining 
to  himself  only  a  reversionary  interest^  the  possession  is  that  of  the 
lessee,  or  bailee,  who  alone  can  maintain  an  action  of  trespass  for 
a  forcible  injury  to  the  property ;  the  remedy  of  the  general  owner 
or  reversioner  being  by  an  action  upon  the  case.^  Thus  a  tenant 
lor  years  may  have  an  action  of  trespass  for  cutting  down  trees ;  * 
and  a  tenant  at  will  may  sue  in  this  form  for  throwing  down  the 
fences  erected  by  himself,  and  destroying  the  grass ;  ^  or  the  lessee 
of  a  chattel,  for  taking  and  carrying  it  away  during  the  term ;  *» 
the  lessor  or  general  owner  never  being  permitted  to  maintain  this 
action  for  an  injury  done  to  the  property  while  it  was  in  the 
possession  of  the  lessee  or  of  a  bailee  entitled  to  the  exclusive 
enjoyment.'^  But  the  existence  of  a  mere  easement  in  land  will 
not  impair  or  affect  the  possession  of  the  owner  of  the  soil.  Thus, 
for  example,  the  existence  of  a  public  way  over  the  plaintiff's  land 
will  not  prevent  him  from  maintaining  an  action  of  trespass  against 
a  stranger,  who  digs  up  the  soil,  or  erects  a  building  within  the 
limits  of  the  highway ;  ^  and  proof  of  the  plaintiff's  possession  of 

1  The  Six  Carpenters'  case,  8  Co.  145 ;  f  Ibid. ;  Campbell  v.  Arnold,  1  Johns. 
Adams  y.  Freeman,  12  Johns.  408  ;  [Mai-  511;  Tobey  v.  Webster,  3  Johns.  468. 
com  V,  Spoor,  12  Met.  279  ;  Tubbs  v.  But  the  owner  of  the  subsoil  may  main- 
Tukey,  3  Gush.  438.]  tain  trespass  against  one  who  has  the  ex- 

2  Gardiner  v.  Campbell,  15  Johns.  401.  elusive  right  to  the  posse^^sion  of  the  sur- 
[So  where  a  ship-o^\Tier,  who  had  engaged  fiice,  as,  for  example,  to  cut  the  grass,  if 
to  carry  a  passenger,  refuses  to  carry  him,  the  latter  should  make  holes  in  the  earth 
and  proceeds  on  the  voyage  without  giv-  of  such  a  depth  as  to  penetrate  into  the 
ing  the  passenger  reasonable  opportunity  subsoil,  and  so  interfere  with  the  rights  of 
to  remove  his  luggage,  or  with  the  intent  the  owner.  Cox  v.  Glue,  12  Jur.  185  ;  5 
to  carry  it  beyond  his  reach,  he  thereby  M.  G.  &  S.  533.  If  the  injury  merely 
terminates  the  contract  of  carriage,  and  is  affects  the  surface,  and  not  the  subsoil,  as, 
liable  in  trespass  for  the  carrying  away  of  by  riding  over  it,  the  remedy  belongs  only 
the  luggage.  Holmes  v.  Doane,  3  Gray,  to  the  owner  of  the  surface.  Ibid ;  [Ly- 
329.]  ford  v.  Toothaker,  39  Maine,  28.] 

3  Chitty  on  Plead.  195,  196  (7th  ed.)  ;  «  Cortelvou  v.  Van  Brundt,  2  Johns. 
Lienow  v.  Kitchie,  8  Pick.  235.  [But  see  357,  363;  Gidney  v  Earl,  12  Wend.  98  ; 
Davis  V.  Nash,  32  Maine,  411.  A  rever-  Grose  v.  West,  1  Taunt.  39  ;  Stevens  v. 
sioner,  who  has  by  wrong  regained  pos-  Whistler,  11  East,  51  ;  Bobbins  v.  Bor- 
session  of  land  which  was  under  a  lease,  man,  1  Pick.  122;  Adams  v.  Emerson,  6 
may  maintain  trespass  against  a  mere  Pick.  57 ;  Perley  v.  Chandler,  6  Mass. 
stranger  who  has  invaded  his  possession.  454;  [Hunt  v.  Rich,  38  Maine,  195.  A 
Rollins  V.  Clay,  33  Maine,  132.]  railroad  corporation  has  a  right  to  cut  the 

*  Evans  v.  Evans,  2  Carapb.  491  ;  trees  growing  in  the  strip  of  land  which 
Blackett  v.  Lowes,  2  M.  &  S.  499.  they  have  taken  for  their  road,  whetlier 

*  Little  V.  Palister,  3  Greenl.  6.  such   trees   are   for   shade,   ornament,    or 
6  Corfield  v.  Coryell,  4  Wash.  371,  387  ;     fruit,  and  whether  such  cutting  be  at  the 

Ward  V.  Macauley,  4  T.  R.  489  ;  Gordon  time  of  laying  out  their  track,  or  after- 
V.  Harper,  7  T.  R.  9.  wards ;  and  the  burden  of  proof  does  no» 


PART  IV.^  TRESPASS.  537 

tlie  land  adjoining  the  highway  is  presumptive  evidence  of  his 
possession  of  the  soil  ad  medium  filum  vice} 

■   §  617.   Where  the  subject  of  the  action  is  a  partition  fence  be- 
tween the  lands  of  two  adjoining  proprietors,  it  is  presumed  to 
be  the  common  property  of  both,  unless  the  contrary  is  shown.^ 
If  it  is  proved  to  have  been  originally  built  upon  the  land  of  one 
of  them,  it  is  his ;  but  if  it  were  built  equally  upon  the  land  of 
both,  though  at  their  joint  expense,  each  is  the  owner  in  severalty 
of  the  part  standing  on  his  own  land.^     If  the  boundary  is  a  hedge, 
and  one  ditch,  it  is  presumed  to  belong  to  him  on  whose  side  the 
hedge  is ;  it  being  presumed  that  he  who  dug  the  ditch  throw  the 
earth  upon  his  own  land,  which  alone  was  lawful  for  him  to  do, 
and  that  the  hedge  was  planted,  as  is  usual,  on  the  top  of  the 
bank  thus  raised.*     But  if  there  is  a  ditch  on  each  side  of  the 
hedge,  or  no  ditch  at  all,  the  hedge  is  presumed  to  be  the  common 
property  of  both  proprietors.^     If  a  tree  grows  so  near  the  boun- 
dary line,  that  the  roots  extend  into  the  soil  of  each  proprietor,  yet 
the  property  in  the  tree  belongs  to  the  owner  of  the  land  in  which 
the  tree  was  originally  sown  or  planted.'^     But  if  the  tree  stands 
directly  upon  the  line  between  adjoining  owners,  so  that  the  line 
passes  through  it,  it  is  the  common  property  of  both,  whether  it 
be  mariced  as  a  boundary  or  not ;  and  trespass  will  lie,  if  one  cuts 
it  down  without  the  consent  of  tlie  other." 

§  618.   It  may  further  be  observed,  that  proof  of  an  actual  and 

rest  on  the  corporation  to  show  that  the  for  the  defendants  to  show  that  their  acta 

trees  were  cut  for  the  purposes  of  the  road,  are  strictly  within   the  powers   conferred 

Brainard  I'.  Clapp,  10  Cush.  6,   11.     One  by  their  charter.    Mellen  w.  Western  R.R. 

person  had  a  rijiht  of  wav  over  another's  Corp.  4  Gray,  301  ;  Hazcn  v.  Boston,  &c. 

knd.     The  owner  of  the  soil,  and  the  pos-  R.  R.  2  lb.   574.     Sec   also  Brainard  i;. 

sessor  of  the  easement,  joined  in  erecting  Clapp,  10  Cush.  6.     And  such  a  corpora- 

a  gate  across  such  wav,  the  owner  of  the  tiou  is  liable  as  a  trespasser,  for  entenng 

soil  promising  that  it  should  remain.     He  upon  land  for  the  purpose  of  constructmg 

Bubsequently,  without  the  consent  of  the  its  road,  if  the  written   location  docs  not 

owner  of  the  right  of  way,  removed   the  cover  the  laud  so  entered  upon.     Hazen  v. 

gate     and    the    latter    brought  trespass  Boston,  &c.  R.  R ,  2  Gray,  .574,  581.] 
against  him,  and  it  wa.s  held  that  it  would         ^  Wiltshire  v.  Sidford,  8  B.  &  C.  259 

not  lie.     Dietrich  i-.  Berk,  24  Penn.  State  note  (a) ;  Cubitt  v.  Porter,  Id.  2.-)7. 
jj  470  ]  ^  Matts  V.  Hawkins,  5  Taunt.  20. 

1  Cook  V.  Green,  11  Price,  736;  Head-        *  Vowles  v.  Miller,  3  Taunt.  138,  per 

lam  V.  Headley,  Holt,  Cas.  463  ;  Grose  v.  Lawrence,  J. 
West,  7  Taunt.  39.     [A  railroad  corpora-        &  Archbold's  N.  P.  328. 
tion,  building  and  maintaining  as  part  of        «  Holder  v.  Coates   1  M.  &  Malk.  112 ; 

their  road  a  bridge  across  a  river,  in  such  Masters  v.  Pollie,  2  Roll.  Kep.  141.     &36 

manner  as  to  obstruct  the  passage  of  the  also  Dig.  lib.  xlvii.  tit.  7,  1.  6,  §  2,  with 

water,  are  lial)le   to  an   action  of  tort  by  which  agrees  the  Instit.  lib.  u.  tit.  1,^  31, 

the  owner  of  the  land  thereby  flowed,  un-  as  expounded  by  Prof  Cooper,     bee  Loop- 

less  they  show  that  they  have  taken  rea-  er's  Justinian,  p.  80.  t,-,    tt  -r 

Bonable  precautions  to  prevent  unnecessary         "<  Griffin   v.   Bixby,   12   N.    Hamp.    K. 

damage  to  his  land.     In  such  cases,  it  is  454. 


538  LAW   OF   EVIDENCE.  [PART  IV 

exclusive  possession  by  the  plaintiff,  even  though  it  be  hi/  wrong,  is 
sufficient  to  support  this  action  against  a  mere  stranger  or  wrong- 
doer, who  has  neither  title  to  the  possession  in  himself,  nor  author- 
ity from  the  legal  owner.^  And  where  both  parties  rely  on  a  title 
by  mere  possession,  without  any  evidence  of  a  legal  title,  a  con- 
tract by  one  of  them,  to  purchase  the  land  from  the  true  owner,  is 
admissible  in  evidence  to  show  the  character  of  his  possession. 
So  the  possession  of  her  bedroom,  by  a  female  servant  in  the 
house,  it  seems  will  be  sufficient  to  entitle  her  to  maintain  this 
action  against  the  wrongdoer,  who  forces  himself  into  it  while  she 
is  in  bed  there.^  The  finder  of  goods,  also,  and  the  prior  occupant 
of  land,  or  its  produce,  has  a  sufficient  possession  to  maintain  this 
action  against  any  person  except  the  true  owner.^  And  the 
owner  of  the  sea-shore  has  the  possession  of  wrecked  property, 
ratione  soli,  against  a  stranger.^  The  wrongful  possessor,  however, 
though  he  be  tenant  by  sufferance,  has  no  such  remedy  against 
the  rightful  owner,  who  resumes  the  possession ;  ^  though  this 
resumption  of  possession  will  not  defeat  the  prior  possessor's 
action  of  trespass  against  a  stranger.'^ 

§  618  a.  In  trespass  quare  clausum  fregit,  if  the  close  is  particu- 
larly described  by  its  boundaries,  it  will  be  necessary  to  prove 
them  as  laid  ;  for  if  one  may  be  rejected,  they  all  may  be  disre- 
garded, and  the   identity  lost;  but   it  will  not  be  necessary  to 

1  Graham  v.  Peat,  1  East,  244  ;  Harker  aj^ainst  the  shopkeeper,  who  claimed  them 
r.  Birkbeck,  3  Burr.  1556,1563;  Catteris  ra//o??e  so/< ;  the /j/ace  where  a  lost  article  is 
r.  Cowper,  4  Taunt.  547  ;  Revett  r.  Brown,  found  constituting  no  exception  to  the 
5  Bing.  9  ;  Townsend  v.  Kerns,  2  Watts,  general  rule,  that  the  finder  is  entitled 
180;  Barnstable  v.  Thacber,  3  ]\Iet.  239 ;  to  the  custody,  against  all  but  the  true 
Shrewsbury  v.  Smith,  14  Pick.  297;  Fiske  owner.  Bridges  v.  Hawkesworth,  15  Jur. 
V.  Small,  12  Shepl.  453  ;  Brown  v.  Ware,  1079. 

Id.  411  ;  [Clancy  v.  Houdlette,  39  Maine,  ^  Taunton  v.  Costar,  7  T.  R.  431  ;  Tur- 

451  ;  Tyson  v.  Shueey,  5  Md.  540;  Linard  ner  v.  Meymott,  1  Bing.  158  ;  Sampson  v. 

V.    Crossland,    10    Texas,   462.]      [*  Evi-  Henry,  13  Pick.  36. 

dence  of  frequently  cutting  wood  and  tim-  ^  Cutts   v.    Spring,  15  Mass.  235.     In 

ber  on  a  tract  of  woodland  for  more  than  trespass  quare  claiisum  /regit,  if  title  to  the 

twenty  years,  under  a  claim  of  title,  will  freehold  is  asserted  by  each  party,  the  bur- 

Bupport  an  action  of  trespass  against  one  den  of  proof  is  on  the  defendant  to  make 

who  shows  no  title.     Kilborn  v.  Rewer,  8  out  that  the  title  is  in  himself.     If  each 

Gray,  415.]  party  shows  a  title  precisely  equal  to  the 

2  Moore  v.  Moore,  8  Shepl.  350.  other,  the  defendant  fails.  Heath  v.  Wil- 
8  Lewis  V.  Ponsford,  8  C.  &  P.  687.  liams,  12  Shepl.  209.  [*"  It  is  now  well 
*  2  Saund.  47  b,  c,  d,  note  by  Williams ;  settled    in   England,  that  trespass    quare 

Rackham  v.  Jessup,  3  Wils.  332.  chusttm  /regit  may  be  maintained  by  one 

6  Barker  v.  Bates,  13  Pick.  255.     Bat  tenant  in  common  against  another  for  an 

where  a  roll  of  bank-notes  was  dropped  actual  expulsion  or  ouster  from  the  prem- 

and  lost  in  a  shop,  by  a  transient  stranger,  ises."      Gray,  J.,  Silloway  v.  Brown,  12 

and  afterwards  found  and  picked  up  by  Allen,  37,  and  cases  cited.     And  see  Wait 

another   customer,   it  was   held  that  the  v.  Richardson,  33  Verm.  190,  contra.] 
latter  was  entitled  to  the  custody  of  them, 


PART  IV.]  TRESPASS.  539 

prove  a  title  to  the  entire  close.^  The  identity,  thus  necessary  to 
be  established,  may  be  proved  by  the  testimony  of  any  competent 
witness  who  is  acquainted  with  the  lines  and  monuments  of  the 
tract.2 

§  619.  But  though  such  proof  of  possession,  actual  or  construc- 
tive, will  maintain  the  averment  of  the  plaintiff's  possession,  yet  a 
mere  right  of  entry  on  lands  is  not  sufficient.  Hence  a  disseisee, 
though  he  may  maintain  trespass  for  the  original  act  of  disseisin, 
cannot  have  this  action  for  any  subsequent  injury,  until  he  has  ac- 
quired the  possession  by  re-entry  ;  which  will  relate  back  to  the 
original  disseisin,  and  entitle  him  to  sue  in  trespass  for  any  inter- 
mediate wrong  to  the  freehold.^  Hence,  also,  a  deed  of  mere 
release  and  quitclaim,  without  proof  of  possession  at  the  time 
by  the  grantor,  or  of  an  entry  by  the  grantee,  though  admissible 
in  evidence,  is  not  sufficient  to  prove  a  possession.^ 

§  620.  If  the  animalsyeroB  naturce  are  the  subject  of  this  action, 
the  plaintiff  must  show,  either  that  they  were  already  captured,  or 
domesticated,  and  of  some  value ;  or,  that  they  were  dead ;  or, 
that  the  defendant  killed  or  took  them  on  the  plaintiff 's  ground ; 
or,  that  the  game  was  started  there,  and  killed  or  captured  else- 
where, the  plaintiff  asserting  his  local  possession  and  property  by 
joining  in  the  pursuit.^  But  pursuit  alone  gives  no  right  of  prop- 
erty. Therefore  where  one  was  hunting  a  fox,  and  another,  in 
sight  of  the  pursuer,  killed  and  carried  him  off,  it  was  held  that 
trespass  could  not  be  maintained  against  him.^  So,  where  the 
parties  were  owners  of  several  boats  employed  in  fishing,  and  the 
plaintiff's  boat  cast  a  seine  round  a  shoal  of  mackerel,  except  a 
small  opening  which  the  seine  did  not  quite  fill  up,  but  through 
which,  in  the  opinion  of  experienced  persons,  the  fish  could  not 

1  See  ante,  Vol.  1,  §  62;  "Wheeler  v.  Tyler  v.  Smith,  8  Met.  599;  [King  v. 
Rowell,  7  N.  Hamp.  515;  [Tyson  v.  Baker,  25  Penn.  State  R.  186.]  But  the 
Shueey,  5  Md.  540.]  disseisor  does  not,  by  the  disseisin,  acquire 

2  Leadbettcr  v.  Fitzgerald,  1  Pike,  488.  any  right  to  the  rents  and  profits,  nor  to 
[In  trespass,  a  count  for  breaking  and  en-  trees  severed  by  him  or  by  another  from 
tering  the  plaintiff's  dwelling-house  and  the  freehold ;  but  the  owner  may  take 
taking  and  carrying  away  goods  therefrom  them.     Brown  v.  Ware,  12  Shepl.  411. 

is  not  supported  by  proving  a  trespass  in  *  Marr  v.  Boothby,  1  Applet-  150. 

taking   and    carrying   away  goods   only.  ^  Ireland   i'.    Higgins,    Cro.    El.    125  ; 

Eames  v.  Prentice'  8  Cush.  337 ;  Sampson  Grymes  v.  Shack,  Cro.  Jac.  262  ;  Church- 

V.  Hcnrv,  13  Pick.  36.]  ward  v.  Studdy,  14   East,  249;    6    Com. 

8  Liford's  case,  11  Co.  51  ;  3  Bl.  Comm.  Dig.   386,   Trespass,   A.    (1);    Sutton   r. 

210;    Bigelow   v.  Jones,    10   Pick.    161;  Moody,  2  Salk.  556;  Pierson  v.  Post,  3 

Blood    r.  Wood,   1   Met.  528 ;  Kennebec  Caines,  175. 

Prop'rs   V.  Call,  2  Mass.  486.     And  see  ^  Pierson  v.  Post,  3  Caines,  1 75. 
Taylor  v    Townsend,  8  Mass.  411,  415; 


640  LAW   OF  EVTOENCE.  [PART  IV 

have  escaped ;  and  the  defendant's  boat  came  through  the  opening 
and  took  the  fish ;  it  was  held  that  the  plaintiff's  possession  was 
not  complete,  and  that  therefore  he  could  not  maintain  trespass 
for  the  taking.^ 

§  621.  (2.)  The  plaintiff  must,  in  the  next  place,  prove  that 
the  injury  was  committed  hy  the  defendant,  with  force.  And  the 
defendant  will  be  chargeable,  if  it  appear  that  the  act  was  done  by 
his  direction  or  command,  or  by  his  servant  in  the  course  of  his 
master's  business,  or  while  executing  his  orders  with  ordinary 
care ;  or  if  it  be  done  by  his  domestic  or  reclaimed  animals.^  So, 
if  the  defendant  participated  with  others  in  the  act,  though  it  were 
but  slightly  ;  or,  if  he  procured  the  act  to  be  done  by  inciting 
others.^  But  it  seems  that  persons  entering  a  dwelling-house  in 
good  faith,  to  assist  an  officer  in  the  service  of  legal  process,  are 
not  trespassers,  though  he  entered  unlawfully,  they  not  knowing 
how  he  entered.*  So,  if  the  defendant  unlawfully  exercised  an 
authority  over  the  goods,  in  defiance  or  exclusion  of  the  true  own- 
er, as  where,  being  a  constable,  he  levied  an  execution  on  the 
plaintiff's  goods  in  the  hands  of  the  execution  debtor,  who  was  a 
stranger,  taking  an  inventory  of  them,  and  saying  he  would  take 
them  away  unless  security  were  given  ;  though  he  did  not  actually 
touch  the  goods,  he  is  a  trespasser.^  So,  if  the  defendant  were 
one  of  several  partners  in  trade,  and  the  act  were  done  by  one  of 
the  firm,  provided  it  were  of  the  nature  of  a  taking,  available  to 
the  partnership,  and  they  all  either  joined  in  ordering  it,  or  after- 
wards knowingly  participated  in  the  benefit  of  the  act,  this  is  evi- 
dence of  a  trespass  by  all.^  But  if  a  servant  were  ordered  to  take 
the  goods  of  another,  instead  of  which  he  took  the  goods  of  the 
defendant,  the  master  will  not  be  liable  ;  unless  in  the  case  of  a 

1  Young  V.  Hichens,  1  Dav.  &  Meriv.  parties  before  the  trespass  is  receivable,  if 
592 ;  6  Ad.  &  El.  N.  S.  606,  S.  C.  it  had  reference  to  the  trespass ;  but  evi- 

2  Gregory  v.  Piper,  9  B.  &  C.  591 ;  dence  of  the  conduct  of  one  of  several 
Broughton  v.  Whallon,  8  Wend.  474  ;  6  trespassers,  long  after  the  trespass,  is  not 
Com.  Dis.  392,  Trespass,  C.  (1)  ;  Rooty,  receivable  against  the  others.  Newton  v. 
Chandler,  10  Wend.  110.     Where  the  al-  Wilson,  1  C.  &  K.  5.37. 

legation  was,  that  the  defendant  struck  the  *  Oystead  v.  Shad,  13  Mass.  520,  524. 

plaintifTs  cow  several  blows,  whereof  she  ^  Wintringham  v.  Lafoy,  7  Cowen,  R. 

died,  and  the  evidence  was,  that  after  the  735  ;  Miller  v.  Baker,  1  Met.  27  ;  Gibbs  v. 

beating,  which  was  unmerciful,  the  plain-  Chase,  10  Mass.  125;  Robinson  v.  Mans- 

tifF  killed  the  cow  to  shorten  her  miseries,  field,    13  Pick.   139  ;   Phillips  v.    Hall,    8 

it  was    held  no  variance.      Hancock  v.  Wend.  610.    And  see  Boynton  v.  Willard, 

Southall,  4  D.  &  R.  202.  10  Pick.  166  ;  Rand  v.  Sargeant,  10  ShepI 

8  Flewster  v.   Royle,   1    Campb.    187  ;  326. 

Stonehouse  V.Elliott,  6  T.  R. 315  ;  Parsons  ^  Petrie  v.  Lament,   1    Car.  &  Marsh. 

V.  Lloyd,  3  Wils.  341  ;  Barker  v.  Braham,  93. 
Id.  368.    Evidence  of  the  conduct  of  the 


PART  rV.]  TRESPASS.  541 

sheriff's  deputy,  which  the  law,  on  grounds  of  public  policy,  has 
made  an  exception.^ 

§  622.  It  will  not  be  necessary  for  the  plaintiff  to  prove  that 
the  act  was  done  with  any  tvrongful  intent;  it  being  sufficient  if  it 
was  without  a  justifiable  cause  or  purpose,  though  it  were  done  ac- 
cidentally, or  by  mistake.2  And  though  the  original  entry  or  act 
of  possession  were  by  authority  of  law,  yet  if  a  subsequent  act  of 
force  be  unlawfully  committed,  such  as  would  have  made  the  par- 
ty a  trespasser  if  no  authority  or  right  existed,  he  is  a  trespasser 
ah  initio.^  If  the  authority  were  a  license  in  fact,  the  remedy  is 
not  in  trespass,  but  in  an  action  upon  the  case."*  Nor  is  it  neces- 
sary, in  an  action  of  trespass  quare  clausum /regit,  to  prove  that  the 
defendant  actually  entered  upon  the  land;  for  evidence  that  he 
stood  elsewhere,  and  shot  game  on  the  plaintiff's  land,  will  support 
the  averment  of  an  entry .^  And  after  a  wrongful  entry  and  the 
erection  of  a  building,  for  which  the  owner  has  already  recovered 
damages,  the  continuance  of  the  building,  after  notice  to  remove 
it,  is  a  new  trespass,  for  which  this  action  may  be  maintained.*' 

§  623.  It  is  essential  to  this  form  of  remedy,  that  the  act  be 
proved  to  have  been  done  with  force  directly  applied,  this  being 
the  criterion  of  trespass  ;  but  the  degree  of  force  is  not  material.^ 
While  the  original  force  or  vis  impressa  continues,  so  as  to  become 
the  proximate  cause  of  the  injury,  the  effect  is  immediate,  and  the 
remedy  may  be  in  trespass  ;  but  where  the  original  force  had  ceased 

1  McMamis  v.  Crickett,  1  East,  106;  «  The  Six  Carpenters' case,  8  Co.  145; 
Germantown  "Railroad  Co.  v.  Wilt,  4  Shorland  v.  Govett,  5  B.  &  C.  485  ;  .Sf/pra, 
Whart.  143  ;  Fox  v.  Northern  Liberties,  §  615  ;  Dye  v.  Leatherdale,  3  Wils.  20. 
3  Watts  &  Serg.  123;  Saunderson  r.  Ba-  *  Ibid.;  Gushing  v.  Adams,  18  Pick- 
ker  3  Wils.  312;  Ackworth  v.  Kempe,  1  110.  Trespass  does  not  lie  against  a  ten- 
Doug.  49  ;  Grinnell  v.  Phillips,  1  Mass.  ant  by  sufferance,  until  after  cntiy  upon 
530  him   by  the   lessor.     Rising  v.   Stannard, 

21   Chitty  on  Plead.   192   (7th  edit.);  17    Mass.   282;    Dorrell   v.    Johnson,    17 

Covell  I'.  Laming,  1   Campb.  497  ;  Colwill  Pick.  263.     Whether  the  landlord  may  ex- 

V.  Reeves,   2    Campb.    575  ;    Baseley   i'.  pel  him  by  force,   and  thereby  acquire  a 

Clarkson,  3  Lev.  37  ;  Higginson  t\  York,  lawful  possession  to  himself,   qmtre;   and 

5  Mass.  341  ;  Havden  v.  Shed,  11  Mass.  see  Newton  r.  Harlan d,  1  Man.  &  Grang. 

500,  per  Jackson,  J.;  Id.  507.     See  Guile  644,   that  he  may   not.     But  see,  contra, 

V.  Swan.  19  Johns.  381,  where  the  o\vner  Harvey  v.  Lady  Brydges,  9  Jur.  759;  14 

of  a  balloon,  which  accidentally  descended  M.  &  W.  437. 

into  the  plaintiffs  garden,  was  held  liable  ^  Anon,  cited  per  Lord   Ellenboroagh 

in  trespass.     [And  it  is  no  defence  to  tres-  in  Pickering  v.  Rud,  1  Stark.   U.  56,  58. 

pass  for  cutting  timber  on  the  plaintiff's  But  see  Keble  v.  Hickringill,  1 1  Mod.  74, 

land,  that  the  plaintiff  by  mistake  led  the  130.                                                        »     -pi 

defendant  to  believe  that  the  timber  was  ^  Holmes    v.   Wilson,    10  Ad.   &    EL 

on  his  (the  defendant's  land).     Pearson  r.  503. 

Inlow,  20   Miss.    (5  Bennett)  322.      See  ^  Harvey  v.  Brydges,  14  M.  &  W.  437 ; 

also  Langdon  v.  Bruce,  1  Williams  (Vt.)  The  State  v.  Armfield,  5  Ired.  207. 
&57  ;  Pfeiffer  v.  Grossman,  15  111.  53.] 


542 


LAW   OF  EVIDENCE. 


[part  IV. 


before  the  injury  commenced,  trespass  cannot  be  maintained,  and 
the  only  remedy  is  by  an  action  on  the  case.^ 

§  624.  The  allegation  of  the  time  when  the  trespass  was  com- 
mitted is  not  ordinarily  material  to  be  proved  ;  the  plaintiff  being 
at  liberty  to  prove  a  trespass  at  any  time  before  the  commence- 
ment of  the  action,  whether  before  or  after  the  day  laid  in  the  dec- 
laration. But  in  trespass  with  a  continuando,  the  plaintiff  ought 
to  confine  himself  to  the  time  in  the  declaration  ;  yet  he  may 
waive  the  continuando,  and  prove  a  trespass  on  any  day  before  the 
action  brought ;  or,  he  may  give  in  evidence  only  part  of  the  time 
in  the  continuando?  So,  where  a  trespass  is  alleged  to  have  been 
done  between  a  certain  day  and  the  day  of  the  commencement  of 
the  action,  the  plaintiff  may  prove  either  one  trespass  before  the 
certain  day  mentioned,  or  as  many  as  he  can  within  the  period  of 
time  stated  in  the  declaration,  but  he  cannot  do  both,  and  must 
waive  one  or  the  other.-^  And  in  trespass  against  several,  the 
plaintiff,  having  proved  a  joint  trespass  by  all,  will  not  be  permit- 
ted to  waive  that,  and  give  evidence  of  another  trespass  by  one 
only  ;  *  nor  will  he  be  permitted,  where  the  declaration  contains 


1  1  Chitty  on  Plead.  140,  141,  199  (7th 
edit.);  Smith  v.  Rutherford,  2  S.  &  R. 
358. 

2  Co.  Lit.  283  b;  Bull.  N.  P.  86  ;  Webb 
V.  Turner,  2  Stra.  1095  ;  Hume  v.  Old- 
acre,  1  Stark.  R.  351  ;  Joralmion  v.  Pier- 
pont,  Antli.  42. 

3  2  SlIw.  N.  p.  1341,  per  Gould,  J.; 
Pierce  v.  Pickens,  16  Mass.  470,  472.  In 
this  case,  the  law  on  this  subject  was  thus 
stated  by  Jackson,  J. :  "  Ori<;inally  every 

vdeclaration  in  trespass  seems  to  have  been 
confined  to  one  single  act  of  trespass. 
"When  the  injury  was  of  a  kind  that  could 
be  continued  without  intermission,  from 
time  to  time,  the  plaintiff  was  permitted 
to  declare  with  a  continuando,  and  the 
whole  was  considered  as  one  trespass.  In 
more  modern  times,  in  order  to  save  the 
trouble  and  expense  of  a  distinct  writ,  or 
countj  for  every  different  act,  the  plaintiff 
is  permitted  to  declare,  as  is  done  in  this 
case,  for  a  trespass  on  divers  d.ays  and 
times  between  one  day  and  another  ;  and, 
in  that  case,  he  may  give  evidence  of  any 
number  of  trespasses  M'ithin  the  time  speci- 
fied. Such  a  declaration  is  considered  as 
if  it  contained  a  distinct  count  for  every 
different  trespass.  This  is  for  the  advan- 
tage and  ease  of  the  plaintiff;  but  he  is 
not  obliged  to  avail  himself  of  the  privi- 
lege, and  may  still  consider  his  declara- 
tion as  containing  one  count  only,  and  as 


confined  to  a  single  trespass.  When  it  is 
considered  in  that  light,  the  time  becomes 
immaterial,  and  he  may  prove  a  trespass 
at  any  time  before  the  commencement  of 
the  action,  and  within  the  time  prescribed 
by  the  statute  of  limitations. 

"But  it  would  be  giving  an  undue  ad- 
vantage to  the  plaintiff  if  he  could  avail 
himself  of  the  declaration  in  both  of  these 
modes,  and  would  frequently  operate  as 
a  surprise  on  the  defendant.  He  is,  there- 
fore, bound  to  make  his  election  before  he 
begins  to  introduce  his  evidence  He 
must  waive  the  advantage  of  this  peculiar 
form  of  declaration,  before  he  can  be  per- 
mitted to  offer  evidence  of  a  trespass  at 
any  other  time.  The  rule,  therefore,  on 
this  subject  was  mistaken  on  the  trial.  It 
is  not  that  the  plaintiff  shall  not  recoccr  for 
any  trespass  within  the  time  specified,  and 
also  for  a  trespass  at  another  time  ;  but  he 
shall  not  (jive  evidence  of  one  or  more  tres- 
passes within  the  time,  and  of  another  at 
another  time." 

*  Tait ;;.  Harris,  1  M.  &  Rob.  282.  See 
also  Wynne  v.  Anderson,  3  C.  &  P.  596. 
[Where  two  are  sued  jointly  for  a  trespass 
upon  land,  and  the  declaration  alleges 
joint  trespasses  on  certain  days,  there  may 
be  a  verdict  against  both  jointly,  and  a 
joint  assessment  of  damages,  for  trespasses 
in  which  they  united,  but  there  cannot  be 
a  verdict  against  both  jointly,  and  a  sepa- 


PART  IV.]  TRESPASS.  543 

but  one  count,  after  proof  of  one  trespass,  to  waive  that  and  prove 
another.!  So,  where  the  action  is  against  three,  for  example,  and 
the  plaintiff  proves  a  joint  trespass  by  two  only,  he  will  not  be  al- 
lowed to  give  evidence  of  another  trespass  by  all  the  three,  even  as 
against  those  two  alone.^ 

§  625.  In  the  defence  of  this  action,  the  general  issue  is  not 
guilty  ;  under  which  the  defendant  may  give  evidence  of  any  facts 
tending  to  disprove  either  of  the  propositions  which,  as  we  have 
seen,  the  plaintiff  is  obliged  to  make  out  in  order  to  maintain  the 
action.  Every  defence  which  admits  the  defendant  to  have  been, 
prima  facie  ^  a  trespasser,  must  be  specially  pleaded  ;  but  any  mat- 
ters which  go  to  show  that  he  never  did  the  acts  complained  of 
may  be  given  in  evidence  under  the  general  issue.  Thus,  for  ex- 
ample, under  this  issue  may  be  proved  that  the  plaintiff  has  no 
property  in  the  goods,  or,  that  the  defendant  did  not  take  them ; 
or,  that  he  did  not  enter  the  plaintiff's  close.  So,  the  defendant 
may  show,  under  this  issue,  that  the  freehold  and  immediate  right 
of  possession  is  in  himself,  or  in  one  under  whom  he  claims  title  ; 
thus  disproving  the  plaintiff's  allegation  that  the  right  of  pos- 
session is  in  him.3  But  if  he  acted  by  license,  even  from  the  plain- 
tiff, without  claiming  title  in  himself;^  or,  if  he  would  justify  un- 
der a  custom  to  enter ;  ^  or,  under  a  right  of  way  ;  ^  or,  if  the  in- 
jury was  occasioned  by  the  plaintiff's  own  negligence,  or  was  done 
by  the  defendant  from  any  other  cause,  short  of  such  extraneous 
force  as  deprived  him  of  all  agency  in  the  act,  it  cannot  be  shown 
under  this  issue,  but  must  be  specially  pleaded.'^  So,  a  distress 
for  rent,  when  made  on  the  demised  premises,  may  be  shown  un- 
der this  issue ;  but  if  it  were  made  elsewhere,  or  for  any  other 

rate  assessment  of  damages  against  each  not  be  permitted,  under  the  general  issue, 

for  any  trespasses  corainitted  by  them  sep-  to  prove  title  in  a  stranger,  under  whom 

aratcly   at  difl'erent   times.     Bosworth   v.  he  docs  not  justify.     Philpot   v.  Holmes, 

Sturtevant,  2  Cush.  392.]  1  Peake,  R.  67  ;  Carter  v.  Johnson,  2  M. 

^  Stante  v.  Pricket,  1  Campb.  573.  &  Rob.  263.     Nor  to  give  evidence  of  an 

2  Hitchen   v.   Teale,   2  M.  &  Rob.  30;  easement,   nor  of  a  title   by  prescription. 

Sedley   v.     Sutherland,   3   Esp.    R.   202;  Ferris  v.  Brown,  3  Barb.   S.  C.  R.   10."); 

[Prichard  v.  Campbell,  .5  Ind.    494.     See  [Fuller  v.  Rounceville,  9  Foster  (N.  H.) 

also  Gardner  v.  Field,  1  Gray,  151 ;  Wild-  554.] 

erman  v.  Sandusky,  15  111.  .59  ]  *  Milman   v.   Dolwell,  2  Campb.  378; 

8  1    Chitty  on  'Plead.   437  ;    Dodd    v.  Philpot  v.  Holmes,  1.  Peake,  R.  67  ;  Rug- 

Kyffin,  7  T.  R.  354 ;  Argent  v.  Durrant,  8  gles  v.  Lesure,  24  Pick.  187  ;  [Hill  v.  Mo- 

T.  R.  403.     See  also  Monumoi  v.  Rogers,  rev,  26  Vt.  178.] 
1  Mass.  1 59  ;  Anthony  r.  Gilbert,  4  Blackf.         '^  Waters  v.  Lilley,  4  Pick.  145. 
348;    Rawson    v.    Morse,   4   Pick.    127;         "  gtrout  i'.  Berry,  7  Mass.  38.5. 
Sti-ong  t'.  Hobbs,  12  Met.  185.    But  where         ^  i   Chitty  on  Plead.  437,  438;  Supra, 

the  plaintiff  is  in  the  actual  possession  and  §  94 ;  Knapp  v.  Salsbury,  2  Campl).  500. 
occupation  of  the  close,  the  defendant  will 


544  LAW   OF  EVroENCE.  [part  TV 

cause,  it  must  be  justified  under  a  special  plea.^  Matters  in  dis- 
charge of  the  action  must  be  specially  pleaded  ;  but  matters  in 
mitigation  of  the  wrong  and  damages,  which  cannot  be  so  plead- 
ed, may  be  given  in  evidence  under  the  general  issue.^  And  it 
seems  that  a  variance  in  the  description  of  the  locus  in  quo  is 
available  to  the  defendant  under  this  issue,  as  the  allegation  of 
place,  in  an  action  of  trespass  quare  clausum  /regit,  is  essentially 
descriptive  of  the  particular  trespass  complained  of.^  But  the 
variance,  to  be  fatal,  must  be  in  some  essential  part  of  the  de- 
scription ;  and  even  the  abuttals  will  not  be  construed  very 
strictly.  Thus,  if  the  close  be  described  as  bounded  on  the  east 
by  another  close,  and  the  proof  be,  that  the  other  close  lies  on  the 
north,  with  a  point  or  two  towards  the  east ;  or  if  it  be  on  the 
northeast,  or  southeast;*  or  if  it  be  described  as  abutting  on  a 
windmill,  and  the  proof  be,  that  a  highway  lies  between  it  and  the 
windmill ;  ^  it  will  be  sufficient. 

§  626.  The  plea  of  liherum  tenementum  admits  the  fact  that  the 
plaintiff  was  in  possession  of  the  close  described  in  the  declaration; 
and  that  the  defendant  did  the  acts  complained  of  ;  raising  only 
the  question,  whether  the  close  described  was  the  defendant's  free- 
hold or  not.^  And  his  title  must  be  proved  either  by  deed  or  other 
documentary  evidence,  or  by  an  actual,  adverse,  and  exclusive  pos- 
session for  twenty  years  ;  inasmuch  as,  under  this  issue,  he  under- 
takes to  show  a  title  in  himself,  which  shall  do  away  the  presump- 
tion arising  from  the  plaintiff's  possession.'^  Proof  of  a  tenancy 
in  common  with  the  plaintiff  is  not  admissible  under  this  issue. ^ 

1  1  Chitty  on  Plead.  439.  678.     And  sec  Doe  v.  Salter,  1.3  East,  9  ; 

2  Id.  pp.  441,  442;  [Briggs  v.  Mason,  Brownilow  v.  Tomlinson,  1  M.  &  G.  484; 
31  Vt.  433  ;  Collins  v.  Perkins,  Id.  624 ;  "Walford  v.  Anthony,  8  Bing.  75  ;  Leth- 
Linford  v.  Lake,  3  H.  &  N.  276.]  But  bridges.  Winter,  2  Bing.  49;  Doe  r.  Har- 
where  the  defendant  pleaded  the  general  ris,  5  M.  &  S.  326. 

issue,  to  an  action  for  taking  the  plaintiff's         ^  Cocker  v.  Crompton,  1   B.  &  C.  489  ; 

goods,  it  was  recently  held  that  he  could  Lempriere  v.  Humphrey,  3  Ad.  &  EI.  181  ; 

not  be  permitted,  under  this  issue,  to  show  Caruth  v.  Allen,  2  McCord,   126  ;  Doe  v. 

in   mitigation  of  damages   a  repayment,  Wright,    10   Ad.    &    El.     763 ;    Ryan    v. 

after  action  brought,  oi  tha  money  produced  Clarke,  13  Jur.  1000.     [If  the  defendant 

by  the  sale  of  the  goods.     Rundle  v.  Little,  claims  title  under  the  same  person  through 

6  Ad.  &  El.  174,  N.  S.  whom  the  plain  tiff  claims,  the  plaintiff  need 

^  3   Stephens,  N.  P.  2642;  Webber  v.  not  prove  title  in  such  person,  as  the  de- 
Richards,    10  Law  Journ.   203;    1   Salk.  fendant,  by  relying  on  him,  admits  that  he 
452,  per  Holt,  C.  J. ;  Taylor  17.  Hooman,  1  had  the  title.     McBumey  v.   Cutler,    18 
Moore,  161  ;   Harris  v.  Cook,   8   Taunt.  Barb.  203.] 
539.  T  Brest    v.  Lever.    7   M.    &   W.    593. 

*  Mildmay  v.  Dean,  2  Roll.  Abr.  678 ;  [*  See  Reed  v.  Price,  30  Mis.  442  ;  Beach 

Roberts  v.  Karr,  1   Taunt.  495,  501,  per  v.  Livergood,  15  Ind.  496.] 
Heath,  J.  1  Voyce  v.  Voyce,  Gow,  R.  201  ;  Rob- 

6  Nowell  V.  Sands,  2  Roll.  Abr.   677,  erts  v.  Dame  11  N.  Hamp.  226.     [*  Un 


PART  IV.]  TRESPASS.  545 

If  the  defendant  succeeds  in  establishing  a  title  to  that  part  of 
the  close  on  which  the  trespass  was  committed,  he  is  entitled  to 
recover,  though  he  does  not  prove  a  title  to  the  whole  close  ;  the 
words  "  the  close  in  which,"  &c.,  constituting  a  divisible  allega- 
tion .^ 

§  627 ,  The  plea  of  license  may  be  supported  by  proof  of  a  license 
in  law  as  well  as  in  fact ;  and  it  is  immaterial  whether  it  be  ex- 
pressed, or  implied  from  circumstances.  Thus,  an  entry  to  exe- 
cute legal  process,  or  to  distrain  for  rent,  or  for  damage  feasant ; 
or  an  entry  by  a  remainder-man,  or  a  reversioner,  to  see  whether 
waste  has  been  done,  or  repairs  made  ;  or  by  a  commoner,  to  view 
his  cattle  ;  or  by  a  traveller,  into  an  inn  ;  or  by  a  landlord,  to  take 
possession,  after  the  expiration  of  the  tenant's  lease  ;  or  an  entry 
into  another's  house  at  usual  and  reasonable  hours,  and  in  the 
customary  manner,  for  any  of  the  ordinary  purposes  of  life,  may  be 
given  in  evidence  under  this  plea.^  So,  an  entry  after  a  forfeiture 
by  non-performance  of  covenants,  the  lease  containing  a  clause 
that  upon  such  non-performance  the  landlord  may  enter  and  expel 
the  tenant,  may  also  be  shown  in  the  like  manner.*  Evidence 
of  a  familiar  intimacy  in  the  family  may  also  be  given  in  support 
of  this  plea.^  So,  if  the  plaintiff's  goods,  being  left  in  the  defend- 
ant's building,  were  an  encumbrance,  and  he  removed  them  to 
the  plaintiff's  close ;  or  if  the  plaintiff  unlawfully  took  the  defend- 

der  an  answer  in  trespass  quare  clausum,  so  notified  enters  on  his  premises,  ^espass 

justilVini,'  under  a  third  person  as  owner  will   lie  against  him.     Bogert  v.  Haight, 

of  the  land,  defendant   may  show  an   es-  20  Barb.  251. 

tate  in  common  in  such  third  person.   Jew-         A  traveller  on  a  highway  which  is  made 

ctt  V  Foster,  14  Gray,  405  1  impassable   by   a  sudden   and  recent  ob- 

2  Smith  V.  Rovston,  8  M.  &  W.  381  ;  struction,  may  pass  over  the  adjoining 
Richards  v.  Peak4,  2  li.  &  C.  918.  fields,  so  far  as  it  is  necessary  to  avoid 

3  5  Com.  Dig.  806,  tit.  Pleader,  3  M.  the  obstruction,  and  doing  no  unnecessary 
35  •  Ditchani  v.  Bond,  3  Campb.  524  ;  damage,  without  being  guilty  of  a  tres- 
Fel'tham  v.  Cartwright,  5  Bing.  N.  C.  569.  pass.  Campbell  v.  Race,  7  Cush.  408, 
["A  license  from  a  mother  to  a  son  to  410;  Taylor  t-.  Whitehead,  2  Doug.  4i  5  ; 
open  the  family  tomb  to  deposit  therein  3  Dane,  Abr.  258 ;  Holmes  v.  Seely,  19 
the  corpse  of  a  deceased  son,  will  be  im-  Wend.  507  ;  Newkirk  v.  Sabler,  9  Barb, 
plied  from  the  relationship  of  the  parties,  652.J 

the  exi -eneies  of  the  case,  and  the  wcU-es-         *  Kavanagh  v.    Gudge,  7  Man.   &  L>t. 

tablishcd  usages  of  a  civilized  and  Christian  316;  7  Scott,  N.  R.  1025.     [So  where  a 

community."     Lakin  v.  Ames.  10    Cush.  contract  to  erect  a  building  on  the  land  ot 

198    221.     A  person  who   holds   himself  another  has  been  rescinded,  property  put 

out'  to   the   public   a.s   a  wharfinger   and  on  the  land  by  the  contractor  in  pursuance 

warehouseman   thereby   licenses    all    per-  of  the  contract,  may  be  removed  by  him 

sous  to  enter  his  preiilises  who  have  oeca-  after  the  rescission,  without  trespass,  it  no 

Bion  to  do  so  in  connection  witli  his  busi-  unnecessary  damage  is  done.     ArmingtOD 

ness.     But  his  business  being  a  merely  pri-  v.   Larrabee,  10  Cush.  512;  Nettleton  v. 

vate   one,  he  may  terminate   the  general  Sikes,  8  Met.  34.] 
license,  by  giving  any  person  notice  not  to         ^  Adams  v.  Freeman,  12  Johns.  408. 
come  on  liis  premises  ;  and  if  the  person 
VOL.  II.                              35 


546  LAW   OF  EVIDENCE.  [PAKT  IV 

ant's  goods,  and  conveyed  them  within  the  plaintiff's  close,  and 
the  defendant  thereupon,  making  fresh  pursuit,  entered  and  retook 
them ;  the  facts  in  either  case  furnish,  by  implication,  evidence  of 
a  licetnse  to  enter.^  Tlie  mere  circumstance  that  the  defendant's 
goods  were  upon  the  plaintiff's  close,  and  therefore  he  entered  and 
took  them,  is  not  alone  sufRcient  to  justify  the  entry .^  But  if 
the  owner  of  the  land  had  sold  the  goods  there  to  the  defendant, 
a  license  to  enter  and  take  them  in  implied  in  the  contract.^  The 
evidence  must  cover  all  the  trespasses  proved,  or  it  will  not  sus- 
tain the  justification.*  So,  if  a  license  to  erect  and  maintain  a 
wall  be  pleaded,  and  the  evidence  be  of  a  license  to  erect  only,  the 
plea  is  not  supported.^  Evidence  of  a  verbal  agreement  for  the 
sale  of  the  land  by  the  plaintiff  to  the  defendant  is  admissible 
under  a  plea  of  license  to  enter,  and  may  suffice  to  support  the 
plea  as  to  the  entry  only ;  but  it  is  not  sufficient  to  maintain  the 
plea,  in  respect  to  any  acts  which  a  tenant  at  will  may  not  law- 
fully do.^  Nor  will  such  license  avail  to  justify  acts  done  after 
it  has  been  revoked.'^ 

§  628.  Under  the  plea  of  a  liceme  in  law,  the  plaintiff  cannot 
give  in  evidence  a  subsequent  act  of  the  defendant,  which  ren- 
dered him  a  trespasser  ab  initio  ;  but  it  must  be  specially  replied.® 
So,  if  the  defendant  justifies  as  preventing  a  tortious  act  of  the 
plaintiff,  and  the  plaintiff  relies  on  a  license  to  do  the  act,  he  can- 
not give  the  license  in  evidence  under  the  general  replication  of  de 
injuria,  but  must  allege  it  in  a  special  replication.^ 

§  629.  Where  the  trespass  is  justified,  under  civil  or  criminal 
process,  whether  it  be  specially  pleaded,  or  given  in  evidence  under 
a  brief  statement,  filed  with  the  general  issue,  the  party  must 
prove  every  material  fact  of  the  authority  under  which  he  justi- 
fies. If  the  action  is  by  the  person  against  whom  the  process 
issued,  it  is  sufficient  for  the  officer  who  served  it  to  prove  the 
process  itself,  if  it  appear  to  have  issued  from  a  court  of  competent 

1  Rex  V.   Sheward,  2   M.   &  W.  424  ;  Cooper  v.  Slower,  9  Johns.  331  ;  SufFern 

Patrick  I'.  Colerick,  3  M.  &  W.  483.  v.  Townsend,  Id.  35. 

^  Anthony   v.    Harreys,   8   Bing.    186 ;  "^  Cheever    v.   Pearson,   16   Pick.   266  ; 

Williams  v.  Morris,  8  M.  &  W.  488.  [Taplin  v.  Florence,  3  Eng.  Law  &  Eq. 

8  Wood  V.  Manley,  11  Ad.  &  El.  34;  R.  520.] 

Nettleton  v.  Sikes,  8  "Met.  34.  »  Aitkenhead  v.  Blades,  5  Taunt.  198 

*  Barnes   v.    Hunt,   11    East,  451  ;  Sy-  And  see  Taylor  v.  Cole,  3  T.  R.  292,  296, 

mons  V.  Hearson,  12  Price,  369,  390,  per  per  Buller,  J. ;  Six  Carpenters'  case,  8  Co. 

Hullock,  B.  146. 

s  Alexander  v.  Bonnin,  4  Bing.  N.  C.  ^  Taylor  v.  Smith,  7  Taunt.  157.     See 

799,  813.  post,  §§  632,  633. 

«  Carrington  v.  Roots,  2  M.  &  W.  248 ; 


PABT  IV.]  TRESPASS.  547 

jurisdiction,  under  its  seal,  and  to  be  tested  by  the  chief  justice,  or 
other  magistrate  whose  attestation  it  should  bear,  and  be  signed 
by  the  clerk  or  other  proper  officer.  And  if  it  is  mesne  process, 
and  is  returnable,  he  should  in  ordinary  cases  show  that  it  is 
returned  ;  unless  he  is  a  mere  bailiff  or  servant,  who  is  not  bound 
to  make  a  return.^  But  in  trespass  against  the  plaintiff  in  a 
former  action,  or  against  a  stranger,  or  where  the  action  is 
brought  by  a  stranger  whose  goods  have  been  wrongfully  taken 
by  the  sheriff,  under  an  execution  issued  against  another  person, 
the  sheriff  or  his  officers,  justifying  under  the  process,  will  bo 
held  also  to  prove  the  judgment  upon  which  it  issued.^  If  the 
defendant  in  fact  had  the  process  in  his  hands  at  the  time,  he  may 
justify  under  it,  though  lie  then  declared  that  he  entered  the 
premises  for  another  cause.^ 

§  630.  If  the  defendant  justifies  the  destruction  of  the  plain- 
tiff's property,  by  the  defence  of  his  ozvn,  he  must  aver  and  prove 
that  he  could  not  otherwise  preserve  his  own  property.*  If,  how- 
ever, the  plaintiff's  dog  were  killed  in  the  act  of  pursuing  the 
defendant's  deer  in  his  park,  or  rabbits  in  his  warren,  or  poultry 
within  his  own  grounds,  this  will  justify  the  killing  without  proof 
of  any  higher  necessity.^ 

§631.  Where  the  issue  is  upon  a  nV/A^  o/ wat/,  the  defendant 
must  prove  either  a  deed  of  grant  to  him,  or  those  under  whom  he 
claims,  or  an  exclusive  and  uninterrupted  enjoyment  for  at  least 
twenty  years.^    If  the  issue  is  upon  a  right  to  dig  and  take  gravel 

1  Britton  v.  Cole,  1  Salk.  408;   1  Ld.  »  Crowther   v.    Ramsbottom,   7   T.   R. 

Raym.  30") ;    Barker  v.  Miller,  6  Johns.  654. 

195;  Blackley  v.  Sheldon,  7  Johns.  32;  *  Wright  v.  Ramscott,  1  Saund.  84; 
Crowther  v.  Ramsbottom,  7  T.  R.  654 ;  Verc  v.  Cawdor,  1 1  East,  568 ;  Jansou  v. 
Cheasley  r.  Barnes,  10  East,  73;  Middle-  Brown,  1  Campb.  41. 
ton  V.  Price,  1  Wils.  17;  Rowland  v.  ^  Harrington  v.  Turner,  3  Lev.  28; 
Veale,  Cowp.  20;  [Twitchell  v.  Shaw,  10  Wadliurst  v.  Damme,  Cro.  Jac  45;  Jan- 
Cush.  46  ;  Fisher  v.  McGirr,  1  Gray,  1  ;  son  v.  Brown,  1  Campb.  41  ;  Vere  v.  Caw- 
Kuniiedy  i'.  Uuncklee,  lb.  72;  Ross  v.  dor,  11  East,  568,  569.  [In  trespass  for 
Philliriik,  39  Maine,  29  ;  Keniston  v.  Lit-  the  destruction  of  goods,  destroyed  by 
tie,  10  Foster  {X.  H.)  318;  Edmonds  v.  blowing  up  the  building  in  which  they 
Bticl,  23  Conn.  242  ;  Billings  v.  Russell,  23  were  stored,  to  prevent  the  spread  of  a  con- 
I'enn.  State  R.  189.]  [*  A  process  being  flagration  in  a  city,  the  common-law  plea 
void,  tiie  party  who  sets  it  in  motion,  and  of  necessity  is  a  good  plea  in  justification  ; 
all  persons  aiding  and  assisting  him,  are  and  it  is  not  necessary  to  aver  in  it  that 
priiiiafucie  trespassers,  for  seizing  property  the  defendant  was  a  resident  of,  or  owner 
under  it ;  and  acts  which  an  officer  might  of  property  in  the  city,  or  that  his  own 
justify  under  process  actually  void,  but  property  was  in  danger.  Hale  v.  Law- 
regular,  and  apparently  valid  on  its  face,  rence,  3  Zabr.  590.] 

will   be   trespasses   as   against   the  party.  "^  Ilewlins  v.  Shippam,  5  B.  &  B.  221 ; 

Kerr  r.  Mount,  28  N.  Y.  659.]  Cocker  i-.  Cowper,  1    Cr.   M.   &  R.  418. 

-  Martyn    v.    Podger,    5    Burr.    2631;  See  supra,   tit.   Prescription,   §§   537- 

Lake  ;;.  liillcrs,  1  Ld.  Ravm.  733  ;  Britton  546. 
V.  Cole.  1  Salk.  408.  409.' 


548  LAW   OF  EVIDENCE.  [PART  IV. 

or  other  material  for  necessary  repairs,  the  defendant  must  allege 
and  prove  thai  the  repairs  were  necessary,  and  that  the  materials 
were  used  or  in  the  process  of  being  used  for  that  purpose.^ 

§  632.  If  a  right  of  way,  or  any  other  easement,  is  pleaded  in 
justification  of  a  trespass  on  lands,  whether  it  be  in  the  defendant 
himself,  or  in  another  under  whose  command  he  acted,  the  plain- 
tiff cannot  controvert  this  right  by  evidence  under  the  general 
replication  of  de  injuria  sua,  but  must  specifically  traverse  the 
right  as  claimed.*'^  And  where  a  right  of  way  is  claimed,  under  a 
non-existing  grant  from  a  person  who  was  seised  in  fee,  and  the 
plaintiff  traverses  the  grant,  he  cannot,  under  this  issue,  dispute 
the  seisin  in  fee  for  the  purpose  of  rebutting  the  presumption  of  a 
grant,  for  it  is  impliedly  admitted  by  the  replication.^ 

§  633.  Wherever  the  defendant  pleads  matter  of  fact  in  justifi- 
cation, as  distinguished  from  mere  matter  of  record,  title,  or  au- 
thority, it  may  be  traversed  by  the  plaintiff,  by  the  general  replica- 
tion de  injuria  sua  absque  tali  causa}  This  replication  being  a 
traverse  of  the  whole  plea,  the  plaintiff  is  at  liberty  under  it  to 
adduce  any  evidence  disproving  the  facts  alleged  in  the  plea.  But 
he  cannot  go  into  any  evidence  of  new  matter  which  shows  that 
the  defendant's  allegation,  though  true,  does  not  justify  the  tres- 
pass. Thus,  in  an  action  for  trespass  and  false  imprisonment,  if 
the  defendant  justifies  the  commitment  as  a  magistrate,  for  an 
offence  which  is  bailable,  to  which  the  plaintiff  replies  de  injuria, 
he  cannot,  under  this  replication,  avoid  the  justification  by  evi- 
dence of  a  tender  and  refusal  of  bail.^  So,  if  the  defendant  justi- 
fies an  assault  and  battery  by  the  plea  of  son  assault  demesne,  and 
the  plaintiff  replies  de  injuria,  he  will  not  be  permitted  to  show 
tliat  the  defendant,  having  entered  the  plaintiff's  house,  misbe- 
haved tliere.^  Thus  also,  in  trespass  by  a  tenant,  against  his 
landlord,  for  turning  him  out  of  possession,  where  the  defendant 
pleaded  a  fact  by  which  the  lease  was  forfeited,  to  which  the 
plaintiff  replied  de  injuria,  it  was  held,  after  proof  of  the  fact 
of  forfeiture,  that  the  plaintiff  under  this  replication  could  not 
prove  the  acceptance  of  rent  by  the  defendant  as  a  waiver  of  the 
forfeiture,  for  he  should  have  replied  it  specially,  in  avoidance  of 

1  Peppin  V.  Shakespeare,  6  T.  R.  748.  *  See  Gould  on  Pleading,  ch.  vii.  §§  26 

2  Cogate's   case,   8   Co.    66.      And  see     -30. 

Lowe  V.  Govett,  3  B.  &  Ad.  863.  ^  Sayre  v.  E.  of  Rochford,  2  W.  Bl. 

3  Cowlishaw    r.    Chesyln,    1    Cr.   &  J.      1165,  1169,  per  De  Grey,  C.  J. 
48.  ^  liing  V.  Phippard,  Garth.  280. 


I' ART  IV  ]  TRESPASS.  549 

the  plea.i  The  jTeneral  rule  is,  that  all  matters  which  confess  and 
avoid,  whether  alleged  by  the  plaintiff  or  defendant,  must  be 
specially  pleaded ;  otherwise,  the  proof  of  them  is  not  admis- 
sible.^ 

§  634.   The  same  principle  applies  to  all  cases  where  the  de- 
fendant justifies  the  trespass  by  a  plea  answering  the  gist  of  the 
action,  and  the  plaintiff  would  avoid  the  plea  by  proving  that  the 
defendant  exceeded  the  authority  under  which  he  acted,  and  thus 
became  a  trespasser  ah  initio.     In  such  cases  the  plaintiff  can- 
not show  the  excess,  under  a  general  replication ;  but  must  dis- 
tinctly allege  it  in  a  special  replication,  in  the  nature  of  a  new 
assignment.^    Thus,  in  trespass  for  taking  and  impounding  the 
plaintiff's  cattle,  where  the  defendant  justifies  for  that  he  took  them 
damage-feasant,i\\Q  plaintiff  will  not  be  permitted,  under  a  general 
replication,  to  prove  that  the  defendant  abused  one  of  the  beasts, 
so  that  it  died,  whereby  he  became  a  trespasser  ah  initio;  for  he 
should  have  specially  replied  the  excess.*      So,  in  trespass  for 
breaking  and  entering  the  plaintiff's  house  and  expelling  him 
from  it,  where  the  defendant  justified  the  breaking  and  entering, 
under  a  writ  oi  fieri  facias,  which,  it  was  held,  covered  the  expul- 
sion, it  was  also  held,  that  the  plaintiff  could  not  be  permitted  to 
rely  on  the  expulsion  as  an  excess,  without  specially  replying 
it.5     The  replication  of  excess  admits  the  justification  as  alleged, 
and   precludes  the  plaintiff  from   offering   any  evidence   to  dis- 
prove it.^  , 

§  635.  If  a  justification  is  pleaded,  and  thereupon  the  plaintiff 
makes  a  neio  assignment,  to  which  the  defendant  pleads  not  guilty, 
if  the  plaintiff  proves  only  one  trespass,  he  must  also  clearly  show 
that  the  trespass  proved  is  a  different  one  from  that  mentioned  in 
the  plea;  for  if  the  circumstances  are  alike,  the  jury  will  be 
instructed  to  presume  it  to  be  the  same.'^ 

§  635  a.  The  rule  of  damages  in  this  action  has  already  been 
discussed,  in  treating  the  subject  of  Damages ;»  where  we  have 
seen  that  the  declaration  involves  not  only  the  principal  transac- 

i  Warrall  v.  Clare,  2  Carapb.  629.  grave  v.  Smith,  1   Salk.  221 ;  Bull.  N.  P. 

2  2  Stark.  Ev.  8-25.     [*  Hetfield  v.  Cen-  81  ;  Moore  ..  Baylor  5  Taunt.  69 
tral  Kailw.  5  Dutch.  571.  ^  T  aylor  v.  Cole,  3  /•  R.  fj,  296. 

3  Gould  on   Pleadinjr.   ch.   vi.   part  2,  «  Pickering  v.  Rudd,  1  Stark.  K.  56  ,  4 
8    110;    1    Chittv  on   Pleading,   pp.   512,  Campb.  219.         .  ^   „„    „  t,  ,    ,o< 
613,    542-552;-Monprivatt    ..    Smith,    2  ^  Darby  ..  ^-lf'^^i;^%^J'\'^^ 
Caiiipb.  175  ;   Wanall  r.  Clare,  Id.  629.  «  See  supra,  §§  2o4,  256,  266.  268. 

*  Gates   V.  Baylcy.  2  Wil.s.  .313;  Gar- 


550 


LAW   OF  EVIDENCE. 


[part  IV. 


tion,  but  all  its  attendant  circumstances,  and  its  natural  and 
injurious  results ;  all  of  which  are  put  in  issue  by  the  plea  of  not 
guilty.  Upon  this  principle  it  has  been  held,  in  trespass  quare 
clausnm  fregit^  where  the  defendant's  sheep  trespassed  on  the 
plaintiff's  close,  and  commingled  with  his  own,  that  evidence  of 
a  deadly  disease,  communicated  by  the  defendant's  flock  to  the 
plaintiff's,  was  admissil)le,  as  showing  part  of  the  damages  which 
the  plaintiff  was  entitled  to  recover.  And  the  knowledge  of  tlie 
defendant  was  held  immaterial  to  be  proved,  unless  to  incr(jase 
the  damages.^  And  generally,  where  the  plaintiff  has  been  de- 
prived of  the  use  of  his  property  for  a  time,  by  tlie  act  complained 
of,  the  value  of  the  use,  during  such  period,  is  to  be  taken  into  the 
estimation  of  damages ;  ^  the  return  of  the  property  to  the  owner's 
possession,  and  his  acceptance  of  it,  being  available  to  the  wrong- 
doer only  in  mitigation  of  damages,  but  not  in  bar  of  the  action  .^ 
So,  if  the  value  of  the  property  has  been  lawfully  applied  to  the 
owner's  use,  this,  as  has  been  seen  in  another  place,  may  be  shown 
to  reduce  the  damasres.* 


^  Bamum  v.  Vandusen,  16  Conn.  R. 
200. 

2  Warfield  v.  Walter,  11  G.  &  J.  80; 
Hammatt  v.  Russ,  4  Shepl.  171. 

3  Hanmer  v.  VVilsey,  1 7  "Wend.  91  ; 
[Coffin  V.  Field,  7  Cush.  360.] 

*  See  supra,  §§  272,  276.  It  is  agreed 
that,  where  the  property  has  gone  to  the 
plaintiff' 's  use,  by  his  consent,  either  ex- 
press or  implied,  this  will  avail  to  reduce 
his  damages.  But  several  of  the  cases 
seem  to  turn  on  the  question,  whether  the 
property  was  so  applied  by  the  wrong- 
doer himself,  or  by  a  mere  stranger.  And 
upon  this  distinction  it  has  been  held, 
■where  property  was  taken  upon  an  illegal 
process  against  the  owner,  for  which  tak- 
ing an  action  of  trespass  was  commenced 
against  the  creditor  who  directed  it,  and 
afterwards  a  legal  process  was  sued  out, 
under  which  the  same  property,  which 
had  not  gone  back  into  the  owner's  pos- 
session, was  seized  and  sold  for  his  debt, 
that  the  defendant  was  not  at  liberty  to 

Erove  this  fact  in  mitigation  of  damages,  it 
eing  a  mere  act  of  his  own.  Hanmer  v, 
Wilsey,  17  Wend.  91.  The  like  point, 
upon  the  same  distinction,  was  again  de- 
cided in  Otis  V.  Jones,  21  Wend.  394. 
So,  where  one  wrongfully  took  goods 
under  a  belief  of  right  so  to  do,  and  they 
were  afterwards  taken  out  of  his  hands  by 
distress  for  rent  due  from  the  owner  to 
his  landlord,  it  was  held,  in  an  action  of 
trespass  brought  by  the  owner  against  the 


tortfeasor,  that  the  latter  might  show  this 
fact,  in  mitigation  of  damages,  because  of 
his  belief  of  his  right  to  take  the  goods, 
Higgins  V.  Whitney,  24  Wend.  379.  And, 
still  later,  in  an  action  against  a  sheriff"  for 
an  unauthorized  seizure  of  goods  under  a 
Jieri  facias,  he  was  permitted  to  show,  ia 
mitigation  of  damages,  that  the  goods 
were  afterwards  taken  from  his  custody, 
and  lawfully  sold  on  a  distress  warrant 
issued  against  the  plaintiff'  in  favor  of  a 
third  person  ;  the  sale  being  independent 
of  any  agency  of  the  defendant.  Sherry 
V.  Scliuyler,  2  Hill  (N.  Y.)  Rep.  204. 

Other  courts,  however,  have  held,  that 
wherever  the  property  has  been  applied  to 
the  plaintiff's  use,  this  may  be  shown  ia 
mitigation  of  damages.  See  Irish  v, 
Cloyes,  8  Verm.  R.  30,  33. 

But  this  rule  will  generally  be  found  to 
have  been  applied  only  in  cases  of  illegal 
seizures  or  sales  of  goods  by  officers,  who 
have  subsequently  eitlier  regularly  sold 
the  goods,  or  applied  the  proceeds  of  the 
irregular  sale  in  satisfiction  of  final  pro- 
cess against  the  owner.  Such  were,  in 
substance,  the  cases  of  Farrar  v.  Barton,  5 
Mass.  395;  Preseott  v.  Wright,  6  Mass. 
20;  Pierce  v.  Benjamin,  14  Pick.  35<> ; 
Daggett  V.  Adams,  1  Greenl.  198;  Board 
V.  Head,  3  Dana,  489,  494;  Stewart  v. 
Martin,  16  Verm.  R.  397.  Even  where 
the  defendant  was  a  mere  trespasser,  with- 
out pretence  of  title,  he  has  been  permitted 
to  show,  in  mitigation  of  damages,  that 


PART  IV.] 


TRESPASS. 


651 


the  goods  had  been  duly  taken  out  of  his 
hands  and  sold  by  an  ofBcer,  by  virtue 
of  a  legal  precept  against  the  plaintiff. 
Squire  v.  Hollenbeck,  9  Pick.  551 ;  [Kaley 
V.  Shed,  10  Met.  317.] 

Perhaps  the  true  principle  will  be  found 
te  be  this:  that,  where  the  appropriation 
of  tile  goods  or  their  value  to  the  plaintift''s 
use  was  by  his  consent,  expressed  or  im- 
plied, it  goes  in  reduction  of  the  damages ; 
it  bting  in  the  nature  of  a  return  and  ac- 
ceptance of  the  goods  ;  and  that  such  con- 
sent may  always  be  implied,  where  the 
goods  have  been  legally  seized  and  sold 
under  process  against  him.  If  the  appro- 
priation was  made  in  any  other  manner, 
his  consent  may  be  shown  by  any  evidence 
of  a  subsequent  ratification ;  such  as  claim- 
ing the  benefit  of  it,  if  it  were  delivered  in 
payment  to  his  own  creditor,  or  the  like. 

in  trespass  de  bonis  asportcUu,  if  the  jur 


find  for  the  plaintiflf,  the  goods  being  still 
out  of  his  possession,  they  must  award  him 
the  value  of  the  goods ;  they  cannot  award 
damages  for  the  taking  alone,  on  tha 
ground  that  the  goods  are  still  the  prop- 
erty of  the  plaintiff.  Woolley  r.  Carter,  2 
Halst.  85.  But  if  the  plaintiff  has  received 
the  goods  again,  it  is  otherwise.  Merrill 
V.  How,  11  Shepl.  196.  [*If,  for  the  pur- 
pose of  staying  a  conflagration,  a  building 
has  been  blown  up  without  right,  the  jury, 
in  estimating  the  damages,  should  consider 
the  circumstances  under  which  the  build- 
ing and  its  contents  were  situated,  and 
their  chance  of  being  saved,  even  though 
the  same  were  not  actually  on  fire,  and 
should  determine  their  value  with  refer- 
ence to  the  peril  to  which  they  were  ex- 
posed. Parsons  v.  Pettingill,  11  Allen, 
507.J 


552  LAW   OF  EVIDENCE.  fPABT  IV. 


TROVER. 

f*  §  636.  What  the  plaintiff  must  prove. 

637.  Special  property  in  plaintiff  sufficient. 

638,  639.  What  plaintiff  must  prove  when  claiming  title  ander  sale. 

640.  Plaintiff  must  show  a  right  to  the  present  possession  of  the  goods. 

641.  Possession  of  executor  or  administrator  relates  back  to  death  of  testator  or 

intestate. 

642.  Plaintiff  must  prove  that  defendant  has  converted  goods  to  his  own  use. 

Conversion  defined. 

643.  License  sometimes  presumed,  when  act  was  done  under  pressure  of  moral 

necessity. 

644.  Evidence  of  demand  and  refusal  when  necessary.     Effect  of  same. 

645.  Absolute  refusal  not  conclusive  evidence  of  conversion. 

646.  Tenant  in  common  bringing  trover  against  his  co-tenant  must  prove  that 

defendant's  act  was  tortious,  totally  destroying  the  property  so  far  as  plaintiff 
is  concerned. 

647.  Proof  in  actions  by  or  against  husband  and  wife. 

648.  In  United  States,  plea  of  not  guilty  puts  whole  declaration  in  issue.    Defences 

649.  General  measure  of  damages  value  of  thing  taken.     Special  damages  recover 

able,  if  particularly  alleged.] 

§  636.  This  action,  the  form  of  which  is  fictitious,  is  in  substance 
a  remedy  to  recover  the  value  of  personal  chattels,  wrongfully  con- 
verted by  another  to  his  own  use.  To  entitle  the  plaintiff  to  re- 
cover, two  points  are  essential  to  be  proved ;  (1.)  property  in  the 
plaintiff,!  ^^^(j  q^  right  of  possession  at  the  time  of  the  conversion  ; 
and  (2.)  a  conversion  of  the  thing  by  the  defendant  to  his  own 
use.  Whether  the  defendant  originally  came  to  the  possession  of 
the  thing  by  right  or  by  wrong  is  not  material.  The  plaintiflf 
should  also  be  prepared  to  prove  the  value  of  the  goods  at  the  time 
and  place  of  the  conversion  ;  though  this  is  not  essential  to  the 
maintenance  of  the  action. 

§  637.  (1.)  The  property/  in  the  plaintiff  may  be  either  general 
and  absolute,  or  only  special ;  the  latter  of  these  interests  being 

1  Per  Ld.  Mansfield,  1  T.  R.  56.     See     at  the  commencement  of  the  act.  ^n.    Clapp 
also   2   Saund.   47   a  to  47  k,  note  (1).     r.  Glidden,  39  Maine,  448.1 
[And  the  property  must  be  in  the  plaintiff 


PART  rv.] 


TBOVEE. 


553 


Bufficient  for  the  purpose.^  And  where  the  plaintiff  has  a  special 
property,  he  may  maintain  this  action  against  even  the  general 
owner,  if  he  wrongfully  deprives  him  of  the  possession. ^  Special 
property,  in  a  strict  sense,  may  be  said  to  consist  in  the  lawful 
custody  of  the  goods,  with  a  right  of  detention  against  the  general 
owner ;  ^  but   a  lower  degree  of  interest  will  sometimes   suffice, 


1  Webb  V.  Fox,  7  T.  R.  398,  per  Law- 
rence, J. 

2  Roberts  v.  "Wyatt,  2  Taunt  268; 
Spoor  V.  Holland,  s'Wend.  445. 

^  The  nature  of  special  property  is  thus 
discussed  by  Mr.  Justice  Story.  "What 
is  meant  by  a  special  property  in  a  thing  ? 
Does  it  mean  a  qualified  right  or  interest 
in  the  thing,  a  jus  in  re,  or  a  right  annexed 
to  the  thing  ?  Or  does  it  mean  merely  a 
lawful  right  of  custody  or  possession  of  the 
thing,  which  constitutes  a  sufficient  title  to 
maintain  that  possession  against  wrong- 
doers by  action  or  otherwise  ?  If  the  lat- 
ter be  its  true  signification,  it  is  little  more 
than  a  dispute  about  terms;  as  all  persons 
will  now  admit,  that  every  bailee,  even 
under  a  naked  bailment  from  the  owner, 
and  every  rightful  possessor  by  act  or 
operation  of  law,  has  in  this  sense  a  spe- 
cial property  in  the  thing.  But  this  cer- 
tainly is  not  the  sense  in  which  the  phrase 
is  ordinarily  understood.  When  we  speak 
of  a  person's  having  property  in  a  thing, 
we  mean  that  he  has  some  fixed  interest 
in  it  {jus  in  re),  or  some  fixed  right  at- 
tached to  it,  either  equitable  or  legal ;  and 
when  we  speak  of  a  special  property  in  a 
thing,  we  mean  some  special  fixed  interest 
or  right  therein,  distinct  from,  and  subor- 
dinate to,  the  absolute  property  or  interest 
of  the  general  owner.  Thus,  for  example, 
if  goods  are  pledged  for  a  debt,  we  say, 
that  the  pledgee  has  a  special  property 
therein  ;  for  he  has  a  qualified  interest  in 
the  thing,  coextensive  with  his  debt,  as 
owner  pro  tanto.  So  we  say,  that  artificers 
and  workmen,  who  work  on  or  repair  a 
chattol,  and  warehousemen,  and  wharfin- 
gers, anil  factors,  and  carriers,  have  a 
special  property  in  the  chattel  confided  to 
them  for  hire,  for  the  particular  purpose 
of  their  vocation,  because  they  have  a  lien 
thereon  for  the  amount  of  the  hire  due  to 
them,  and  a  rightful  possession  in  virtue 
of  that  lien,  even  against  the  general 
owner,  which  he  cannot  displace  without 
discharging  the  lien.  So  the  sheriff,  who 
has  lawfully  seized  goods  on  an  execution, 
may  in  this  sense  be  said,  without,  per- 
haps, straining  the  propriety  of  language, 
to  have  a  special  property  in  the  goods, 
although,  more  correctly  speaking,  the 
goods  should  be  deemed  to  be  in  the  cus- 


tody of  the  law,  and  his  possession  a  law- 
ful possession,  binding  the  property  for 
the  purposes  of  the  execution  against  the 
general  owner,  as  well  as  against  wrong- 
doers. But  it  seems  a  confusion  of  all 
distinctions  to  say  that  a  naked  bailee, 
such  as  a  depositary,  has  a  special  prop- 
erty, when  he  has  no  more  than  the  lawful 
custody  or  possession  of  the  thing,  without 
any  vested  interest  therein,  for  which  he 
can  detain  the  property,  even  for  a  mo- 
ment, against  the  lawful  o^vner.  It  might, 
with  far  more  propriety,  be  stated,  that  a 
gratuitous  borrower  has  a  special  property 
in  the  thing  bailed  to  him,  because,  during 
the  time  of  the  bailment,  he  has  a  right  to 
the  use  of  the  thing,  and  seems  thus  clothed 
with  a  temporary  ownership  for  tlie  pur- 
poses of  the  loan.  Yet  this  has  some- 
times been  a  matter  denied  or  doubted. 

"  Mr.  Justice  Blackstone  has  defined  an 
absolute  property  to  he,  '  Where  a  man 
has  solely  and  exclusively  the  right,  and 
also  the  occupation,  of  any  moval>le  chat- 
tels, so  that  they  cannot  be  transferred 
from  him,  or  cease  to  be  his,  without  his 
own  act  or  default ' ;  and  qualified,  lim- 
ited, or  special  property  to  be  such  '  as  is 
not  in  its  nature  permanent,  but  may 
sometimes  subsist,  and  at  other  times  not 
subsist.'  And  after  illustrating  this  doc- 
trine by  cases  of  qualified  property  in  ani- 
mals fercE  naturce,  and  in  the  elements  of 
fire,  light,  air,  and  water,  he  then  pro- 
ceeds :  '  These  kinds  of  qualification  in 
property  depend  upon  the  peculiar  cir- 
cumstances of  the  subject-matter,  which  is 
not  cajjable  of  being  under  the  absolute 
dominion  of  any  proprietor.  But  property 
may  also  be  of  a  qualified  or  special  na- 
ture, on  account  of  the  peculiar  circum- 
stances of  the  owner,  when  the  thing  itself 
is  very  capable  of  absolute  ownership.  As 
in  c;ise  of  bailment,  or  delivery  of  goods  to 
another  person  for  a  particular  use ;  as  to 
a  carrier  to  convey  to  London,  to  an  inn- 
keeper to  secure  in  his  inn,  or  the  like. 
Here  there  is  no  absolute  property  ia 
either  the  bailor  or  bailee,  the  person  de- 
livering, or  him  to  whom  it  is  delivered ; 
for  the  bailor  hath  only  the  right,  and  not 
the  immediate  possession  ;  the  bailee  hath 
the  possession,  and  only  a  temporary 
right.     But  it  is  a  qualified  property  in 


554 


LAW   OF  EVIDENCE. 


[part  IV. 


against  a  stranger ;   for  a  mere  wrongdoer  is  not  permitted  to 
question  the  title  of  a  person  in  the  actual  possession  and  custody 


them  both,  and  each  of  them  is  entitled  to 
an  action,  in  case  the  goods  be  damaged 
or  taken  away ;  the  bailee,  on  account  of 
his  immediate  possession ;  the  bailor,  be- 
cause the  possv.5,5ion  of  the  bailee  is,  imme- 
diately, his  possession  also.  So  also  in 
case  of  goods  pledged  or  pawned,  upon 
con.lition,  either  to  repay  money  or  other- 
wise ;  both  the  pledgor  and  pledgee  have 
a  qualified,  but  neither  of  them  an  ab- 
solute, property  in  them ;  the  pledgor's 
property  is  conditional,  and  depends  upon 
the  performance  of  tlie  condition  of  repay- 
ment, &c. ;  and  so,  too,  is  that  of  the 
pledgee,  which  depends  upon  its  non-per- 
formance. The  same  may  be  said  of 
goods  distrained  for  rent,  or  other  cause 
of  distress  ;  which  are  in  the  nature  of  a 
pledge,  and  are  not,  at  the  first  taking,  the 
absolute  property  of  either  tlie  distrainor, 
or  the  party  distrained  upon ;  but  may  be 
redeemed,  or  else  forfeited,  by  the  subse- 
quent conduct  of  the  latter.  But  a  ser- 
vant, who  hath  the  care  of  his  master's 
goods  or  chattels,  as  a  butler  of  plate,  a 
shepherd  of  sheep,  and  the  like,  hath  not 
any  property  or  possession,  either  absolute 
or  qualified,  but  only  a  mere  charge  or 
oversight.'  The  cases  here  put  by  the 
learned  Commentator,  of  qualified  prop- 
erty, are  clearly  cases  where  the  bailee  has 
an  interest  or  lien  in  rem.  Mr.  Justice 
Lawrence,  on  one  occasion,  said:  'Abso- 
lute property  is,  where  one,  having  the 
possession  of  chattels,  has  also  an  exclu- 
sive right  to  enjoy  them,  and  which  can 
only  be  defeated  by  some  act  of  his  own. 
Special  property  is  where  he  who  has  the 
possession  holds  them  subject  to  the  claims 
of  other  persons.  There  may  be  special 
property  in  various  instances.  There  may 
be  special  property  without  possession  ;  or 
there  may  be  special  property,  arising  sim- 
ply out  of  a  lawful  possession,  and  which 
ceases  when  the  true  owner  appears.  Such 
was  the  case  of  Armory  v.  Delamirie.' 

"  Now,  with  reference  to  the  ease  in 
judgment,  the  language  of  the  learned 
judge  may  be  strictly  correct ;  for  it  is  by 
no  means  clear,  that  the  bankrupt  had  not 
an  absolute  property  in  the  chattels,  good 
against  all  the  world,  until  his  assignees 
asserted  some  title  to  it.  The  case  cited 
of  Armory  v.  Delamirie,  was  the  case  of 
goods  coming  to  the  party's  possession  by 
finding,  where  he  might  justly  be  said  to 
be  entitled  to  it,  as  well  as  possessed  of  it, 
as  absolute  owner,  against  all  the  world, 
until  the  rightful  owner  appeared  and 
claimed  it ;  and  if  it  was  never  claimed, 
his  title  as  finder  remained  absolute.     The 


case  of  a  naked  depositary  does  not  seem 
to  have  been  here  presented  to  the  mind 
of  the  learned  judge.  Indeed,  there  is  no 
small  refinement  and  subtilty  in  suggest- 
ing, that  a  person,  lawfully  in  possession 
of  a  thing,  has,  at  the  same  time,  a  spe- 
cial property  therein  against  strangers,  and 
no  property  at  all  against  the  true  owner. 
What  sort  of  special  property  is  that  which 
has  no  existence  against  the  owner  of  the 
thing,  and  yet,  at  the  same  time,  has  an 
existence  against  other  persons  ?  Can 
there  be  property  and  no  property  at  the 
same  time  ?  If  the  language  were,  that, 
when  a  party  has  a  right  of  possession,  that 
right  cannot  lawfully  be  violated  by  mere 
wrongdoers ;  but  if  violated,  it  may  be  re- 
dressed by  an  action  of  trespass  or  trover, 
it  would  be  intelligible.  If  the  language 
were,  that  a  person  may  have  a  present  tem- 
porary or  defeasible  pro|)erty  in  a  thing,  sub- 
ject to  be  devested  by  the  subsequent  claim 
of  the  rightful  owner  under  his  paramount 
title  (such  as  in  the  case  of  the  finder  of 
chattels),  or  a  temporary  property  not 
special,  which  is  to  become  absolute,  or 
extinguished,  by  future  events  (s\ich  as 
the  possession  of  an  abstract  of  the  title  of 
the  vendor  by  the  vendee,  under  a  con- 
tract for  a  sale  and  conveyance  of  real 
estate),  there  would  be  little  difficulty  in 
comprehending  the  nature  and  quality  of 
the  right  as  a.  jus  in  re.  It  would  be  a  pres- 
ent fixed  right  of  property,  subject  to  be 
devested  or  destroyed  by  matters  infaturo. 
In  short,  it  would  be  a  defeasible  but  vested 
interest  in  rem.  But  in  the  case  of  a  na- 
ked deposit,  by  the  very  theory  of  the  con- 
tract, the  bailor  never  means  to  part  for  a 
moment  with  his  right  of  property,  cither 
generally  or  specially,  but  solely  with  his 
present  possession  of  it ;  and  the  under- 
taking of  the  bailee  is  not  to  restore  any 
right  of  property,  but  the  mere  possession, 
to  the  bailor.  It  is  this  change  of  posses- 
sion which  constitutes  the  known  distinc- 
tion between  the  custody  of  a  bailee  and 
that  of  a  mere  domestic  servant ;  for  in  the 
latter  ease,  there  is  no  change  whatever  of 
possession  of  the  goods,  but  the  possession 
remains  in  the  master,  and  the  servant  has 
but  a  charge,  or  oversight;  whereas,  in 
the  case  of  a  bailee,  there  is  a  positive 
change  of  possession.  The  true  descrip- 
tion of  the  right  conferred  on  a  naked 
bailee  is  that  which  Mr.  Justice  Black- 
stone,  in  the  passage  before  cited,  calls  a 
'  possessory  interest,'  or  right  of  possession, 
in  contradistinction  to  a  general  or  special 
property."  See  Story  on  Bailments,  §  93 
9,  K  i' 


PART  IV.] 


TROVER. 


555 


of  the  goods,  whose  possession  he  has  wrongfully  invaded.  The 
naked  possession  of  goods,  with  claim  of  right,  is  sufficient  evidence 
of  title  against  one  who  shows  no  better  right.^  Hence  the  sher- 
iff, who  has  attached  goods,  may  maintain  this  action  against  one 
who  takes  them  from  his  possession,  or  from  that  of  his  bailee  for 
mere  custody .^ 

§  638.  Where  the  plaintifif  claims  title  to  goods  under  a  saZe, 
and  a  question  is  made  as  to  the  time  when  the  property  passed,  it 
will  be  material  for  him  to  prove  that  everything  that  the  seller 
had  to  do  was  already  done,  and  that  nothing  remained  to  be  done 
on  his  own  part  but  to  take  away  the  specific  goods.  They  must 
have  been  weighed  or  measured,  and  specifically  designated  and 
set  apart  by  the  vendor,  subject  to  his  control ;  the  vendor  remain- 
ing, at  most,  but  a  mere  bailee.^  If  they  were  sold  at  auction,  the 
property  passes  to  the  vendee,  although  the  goods  were  not  to  be 
delivered  to  him  until  the  auctioneer  had  paid  the  duties  to  the 
government ;  or  although  they  were  to  be  kept  by  the  auctioneer 
as  a  warehouseman  for  a  stipulated  time.*  If,  before  the  terms 
of  sale  are  complied  with,  the  vendor's  servant  delivers  them  to 


1  Sutton  V.  Buck,  2  Taunt,  302;  Ar- 
mory r.  Dclamirie,  1  Str.  505 ;  Burton  v. 
Hughes,  2  Bing.  173;  Giles  v.  Grover,  6 
Blijili,  277  ;  Story  on  Bailments,  §  93  d,  e, 
f\  Duncan  v.  Spear,  11  Wend.  54  ;  Faulk- 
ner V.  Brown,  13  Wend.  63.  [*  Derby 
V.  Gallup,  5  Minn.  119.] 

2  Wiibraham  v.  Snow,  2  Saund.  47  ; 
Story  on  Bailments,  §  93  e, /;  §§  132- 
135  ;"Bro\vncll  v.  Manchester,  1  Pick.  282; 
Badlam  v.  Tucker.  Id.  389  ;  [Lathrop  v. 
Blake,  3  Foster  (N.  H.)  46.]  Whether 
the  sheriff's  bailee  for  safe-keeping  can 
maintain  trover,  is  a  point  upon  which  the 
decisions  are  not  uniform.  See  Story  on 
Bailments,  §  133  ;  Ludden  v.  Leavitt,  9 
Mass.  104;  Poole  v.  Svmonds,  I  New 
Hamp.  K.  289;  Odiomc"  y.  Colley,  2  N. 
Hamp.  R.  66. 

[The  consignee  of  goods  who  is  ready  to 
pay  freight  on  having  the  goods  delivered 
to  him  may  maintain  trover  against  the 
carriers  or  their  agents,  who,  having  no 
claim  on  the  goods  for  anything  besides 
the  freight,  refuse  to  deliver  them  unless 
a  further  sum  is  first  paid  ;  the  consignee 
in  such  case  is  not  bound  to  make  any 
tender  to  those  in  possession  of  the  goods, 
and  their  refusal  to  deliver  the  goods  is 
evidence  of  a  conversion.  Adams  v.  Clark, 
9  Cush.  215.  The  lessee  of  a  horse  may, 
in  trover,  recover  of  the  o\\Tier  damages 
for  the  loss  of  the  use  of  the  horse  by  the 


act  of  the  owner,  during  a  portion  of  tlie 
time  of  the  bailment.  Hickok  v.  Buck, 
22  Vt.  149.  Trover  will  lie  against  the 
bona  fide  purchaser  of  loads  of  earth  wrong- 
fully taken  from  the  ])laintiff's  land  and 
without  any  demand  and  refusal,  altiiough 
the  defendant  was  ignorant  of  the  trespass 
when  he  converted  the  earth  to  his  own 
use.  Rilev  v.  Boston  Water  Power  Co., 
11  Cush.  11. 

A  father  put  certain  property  into  the 
possession  of  his  son  to  enable  him  to 
earn  a  livelihood,  without  any  stipulation 
as  to  the  length  of  time  tliat  the  son  should 
keep  the  property,  and  reserving  the  right 
to  take  it  away  and  sell  it  whenever  he 
should  be  put  to  any  expense  about  it.  A 
portion  of  the  property,  after  it  had  been 
for  some  time  in  the  possession  and  use 
of  the  son,  was  attached  as  property  of 
the  son,  and  it  was  held  that  the  father 
could  maintain  trover  against  the  attach 
ing  officer.  Morgan  v.  Ide,  8  Cush.  423. 
See  also  Bryant  v.  Clifford,  13  Met. 
138.] 

3  Tarling  v.  Baxter,  6  B.  &  C.  360; 
Bloxam  v.  Saunders,  4  B.  &  C.  948 ;  Sim- 
mons r.  Swift,  5  B.  &  C.  857. 

*  Hinde  v.  Whitehouse,  7  East,  558, 
571  ;  Philimore  v.  Barry,  1  Campb.  513  ; 
[Simmons  v.  Anderson,  7  Rich.  (S.  C.) 
67.] 


05(3  LAW  OF  EVIDENCE.  [PART  IV. 

the  vendee  by  mistake,  no  property  passes.^  Nor  does  any  prop- 
erty pass  by  a  verbal  contract  of  sale,  which  the  statute  of  frauds 
requires  to  be  in  writing.^  If  a  specific  article,  such  as  a  ship,  for 
example,  is  to  be  built,  and  the  price  is  to  be  paid  by  inutalments 
as  the  work  advances,  the  payment  of  the  instalments,  as  they  fall 
due,  vests  the  property  of  the  ship  in  the  vendee  ;  but  if  the  con- 
tract is  general,  without  instalments,  it  is  otherwise.^  But  though 
the  property  thus  passes  by  the  contract  of  sale,  in  the  manner 
above  stated,  yet  by  rescinding  the  contract  the  property  of  the  ven- 
dee is  devested,  and  the  vendor  is  remitted  to  his  former  right.* 
If  the  sale  is  fraudulent,  or  illegal,  or  if  the  goods  were  obtained 
by  false  pretences,  or  were  stolen  and  sold  by  the  thief  to  an  inno- 
cent purchaser,  no  property  passes.^ 

§  639.  Where  the  plaintiff  claims  title  as  the  holder  of  a  lank- 
note,  hill  of  exchange,  promissory  note,  exchequer  hill^  government 
bond  made  payable  to  the  holder,'^  or  other  negotiable  security, 
whether  payable  to  bearer  or  to  order,  and  indorsed  in  blank ;  it 
is  sufficient  for  him  to  show  that  he  took  it  bona  fide  and  for  a  val- 
uable consideration  ;  for  this  vests  the  title  in  him,  without  regard 
to  the  title  or  want  of  title  in  the  person  from  whom  he  received  it. 
It  was  formerly  held  that  if  the  latter  came  to  the  possession  by 
felony,  or  fraud,  or  other  mala  fides,  it  was  incumbent  on  the  plain- 
tiff to  show  that  he  had  used  due  and  reasonable  caution  in  taking 

1  Bishop  V.  Shillito,  2  B.  «Sb  Aid.  329,  of  the  sale  to  the  mortgagor;  and  it  was 
note  [a],  per  Bay  ley,  J.  And  see  Brandt  held  that  the  mortgagee  could  maintain 
V.  Bowlby,  2  B.  &  Ad.  932.  trover   against   the    auctioneer,    although 

2  Bloxsome  i'.  Williams,  3  B.  &  C.  234.  the  latter  did  not  participate  in  the  fraud 

3  Woods  V.  Russell,  5  B.  &  Aid.  942  ;  of  the  mortgagor,  and  did  not  in  fact 
Clarke  v.  Spence,  4  Ad.  &  El.  448  ;  Goss  know  of  the  existence  of  the  mortgage. 
V.  Quinton,  3  M.  &  G.  825;  Bishop  v.  Coles  w.  Clark,  3  Cush.  399.  See  also  Flan- 
Crawshay,  3  B.  &  C.  419  ;  Mucklow  v.  ders  v.  Colby,  8  Foster  (N.  H.)  34;  Moody 
Mangles,!  Taunt.  318;  [Angler  y.  Taun-  t;.  Whitney,  34  Maine,  563;  Cartland  v. 
ton,  &c.  Co.,  1  Gray,  621.]  Morrison,  32  Maine,  190  ;  Cobb  n.  Dows, 

*  Pattison  v.  Robinson,  5  M.  &  S.  105;  9  Barb.  230.     Trover  will  not  lie  against 

Supra,  §  615.  a  bona  fide  purchaser,  without  notice,  of  a 

°  Wilkinson  v.  King,  2  Campb.  335  ;  fixture  wrongfully  severed  from  the  free- 
Noble  v.  Adams,  7  Taunt.  59  ;  Packer  ».  hold.  Cope  v.  Romeyne,  4  McLean,  384  ; 
Gillies,  2  Campb.  336  n;  Peer  v.  Hum-  nor  for  fixtures  which  a  tenant  has  left 
phrey,  2  Ad.  &  El.  495  ;  [Decker  v.  Mat-  annexed  to  the  freehold,  with  the  leave  of 
thews,  2  Kernan  (N.  Y.)  313;  Ladd  v.  the  landlord,  after  he  has  quit  the  possea- 
Moore,  3  Sandf.  Sup.  Ct.  589.  A  raort-  sion.  RuiFey  v.  Henderson,  8  Eng.  Law 
gagee  having  the  right  of  immediate  pos-  &  Eq.  305.] 

session     of    the    mortgaged    goods    was  ^  Wookey  v.   Poole,   4   B.    &   Aid.    1. 

induced  by  the  fraudulent  representations  [*  In  trover  for  bank-bills,  a  description  of 

of  the  mortgagor  to  permit  the  property  them  as  "  certain  current  bank-bills,  rep- 

to  remain  in  the  mortgagor's   possession  resenting  in  all  one  hundred  and  fifty  dol- 

for  a  certain  period.     During  this  period,  lars  in  money,  and  of  the  value  of  one  hun- 

the  mortgagor,  with  intent  to  defraud  the  dred  and  fifty  dollars,"  is  good  after  ver- 

inortgagee,  sent  the  goods  to  an  auctioneer,  diet.    Colebrook  v.  Merrill,  46  N.  H.  160.] 

who  soiii  them,  and  delivered  the  proceeds  '  Gorgier  v.  Mieville,  3  B.  &  C.  45 


PART  IV.]  TROVER.  557 

it ;  but  thoiigli  gross  negligence  in  the  transferee  may  still  be 
shown,  as  evidence  of  fraud,  though  not  equivalent  to  it,  yet  his 
title  is  now  held  to  depend,  not  on  the  degree  of  caution  which  he 
used,  but  on  his  good  faith  in  the  transaction.^  If  the  security 
was  lost  by  the  plaintiff,  and  has  been  found  and  converted  by  the 
defendant,  who  has  paid  part  of  the  proceeds  to  the  plaintiff,  the 
acceptance  of  such  part  is  no  waiver  of  the  tort,  but  trover  still  lies 
for  the  security .2 

§  640.  There  must  also  be  shown  in  the  plaiiitiff  a  right  to  the 
present  possession  of  the  goods.  If  he  has  only  a  special  property, 
there  must  ordinarily  be  evidence  of  actual  possession ;  ^  but  the 
general  property  has  possession  annexed  to  it  by  construction  of 
law.*  If,  however,  there  is  an  intermediate  right  of  possession  in 
another  person  as  lessee,  the  general  owner  cannot  maintain  this 
action.  Therefore,  a  lessor  of  chattels  cannot  have  an  action  of 
trover  against  one  who  lias  taken  them  from  the  possession  of  his 
lessee,  so  long  as  the  right  of  the  lessee  remains  in  forcc.^  But  if 
the  interest  of  the  tenant  or  possessor  is  determined,  whether  by 
forfeiture  or  otherwise,  the  general  owner  may  sue.  Thus,  if  tlie 
tenant  has  unlawfully  sold  the  machinery  demised  with  a  mill ;  ^ 
or,  if  a  stranger  cuts  down  and  removes  a  tree,  during  a  term  ;  "^ 
the  general  owner  may  maintain  this  action  against  the  purchaser 
or  stranger.  Upon  the  same  general  principle  of  right  to  the  im- 
mediate possession,  the  purchaser  of  goods  not  sold  on  credit  has 

1  Storv  on  Bills,  §§  415,  416  ;  Story  on  Contr.  §  509  ;  [Clark  v.  Draper,  19  N.  H. 
Promissory  Notes,    193-197,  382;    Bay-     419] 

ley  on  Bills,  pp.   130,  131,  524,  531  (5th  *  Gordon   v.  Harper,  7    T.  R.  12,  per 

edit.)  ;  Chitty  &  Hulme  on  Bills,  pp.  254  Grose,  J. ;  2  Saund.  47  a,  note  (1);  Ayer 

-257  ;  Goodman  v.  Ilarvev,  4  Ad.  &  El.  v.  Bartlctt,  9  Pick.  156;  Fo.ster  v.  Gorton, 

870;  Uthcr   v.   Rich,    10   Ad.   &  El.  784.  5  Pick.  185. 

[See  ante,  §  172.]  5  Ibid. ;  Smith  v.  Plomer,  15  East,  607  ; 

2  Burn  V.  Morris,  4  Tvrw.  485.  Wheeler  v.  Train,  3  Pick.  255  ;  Pain  v. 

3  Coxe  y.  Harden,  4  East,  211  ;  Hotch-  Whittaker,  Ry.  &  M.  99;  Fairbank  v. 
kiss  V.  McVickar,  12  Johns.  407  ;  Sheldon  Phe'ps,  22  Pick.  535  ;  Supra,  §  610.  And 
V.  Soper,  14  Jolms.  352  ;  Dennie  i".  Harris,  see  Farrant  v.  Thompson,  5  B.  &  A.  826. 
9  Pick.  364.  A  factor  to  whom  goods  But  an  intervening  right  by  way  of  lien, 
have  been  consigned,  but  which  have  not  such  as  that  of  a  carrier,  will  not  deprive 
yet  come  to  hand,  may  maintain  trover  the  general  owner  of  this  remedy,  against  a 
for  them ;  and  this  is  said  to  contradict,  wrongdoer.  Gordon  v.  Harper,  7  T.  R. 
or  at  least  to  form  an  exception  to,  the  rule  12  ;  Nichols  v.  Bastard,  2  C.  M.  &  R.  659 ; 
stated  in  the  text.  See  Fowler  v.  Brown,  [I^ugg  v.  Barnes,  2  Cush.  591  ;  Harvey  v. 
1  B.  &  P.  47,  per  Eyre,  C.  J.     But  the  Epes,  12  Gratt.  153.] 

possession  of  the  carrier  being  the  posses-  *>  Farrant  v.  Thompson,  5  B.  &  A.  826. 

sion  of  the  factor,  whose  servant  he  is  for  [See  also  Ashmead  v.  Kellogg,  23  Conn. 

this  purpose,  the  case  would  seem  on  this  70.] 

ground  to  be  reconcilable  with  the   rule.  '  Berry  v.  Heard,  Cro.  Car.  242 ;  Palm, 

Bull.  N.  P.  36  ;  Dutton  v.  Solomonson,  3  327  ;  7  T.  R.  13  ;  Blakcj  v.  Anscombe,  I 

B.    &  P.   584 ;  Dawes  v.  Peck,  8  T.  R.  New  Rep.  25. 

330 ;  Chitty  on  Contr.  p.  384 ;  Story  on 


558  LAW   OF  EVIDENCE.  [PARl  IV. 

no  right  to  this  form  of  remedy,  until  he  has  paid  or  tendered  the 
price  ;  ^  even  though  he  has  the  key  of  the  apartment  where  ihe 
goods  are  stored,  if  the  vendor  still  retains  the  general  control  of 
the  premises.^  So,  if  the  purchaser  of  lands,  being  permitted  to 
occupy  until  default  of  payment,  the  title  remaining  in  the  vendor 
for  his  security,  cuts  down  and  sells  timber  without  leave  from  the 
vendor,  the  latter  may  have  trover  against  the  purchaser.^  And 
if  the  bailee  of  goods  for  a  special  purpose  transfers  them  to  an- 
other in  contravention  of  that  purpose,  the  remedy  is  the  same.* 
The  bailee  of  materials  to  be  manufactured  may  also  have  this  ac- 
tion against  a  stranger,  though  the  goods  were  taken  by  the  defend- 
ant from  the  possession  of  a  third  person,  whom  the  plaintiff  had 
hired  to  perform  the  work.^  So,  a  ship-owner  may  maintain  ti'over 
for  the  goods  shipped,  against  the  sheriff  who  attaches  them,  with- 
out payment  or  tender  of  the  freight  due.^ 

§  641.  An  executor  or  administrator  has  the  property  of  the 
goods  of  his  testator  or  intestate  vested  in  him  before  his  actual 
possession  ;  and  therefore  may  have  trover  or  trespass  against  one 
who  has  previously  taken  them.  And  though  he  does  not  prove 
the  will,  or  receive  letters  of  administration,  for  a  long  time  after 
the  death  of  the  testator  or  intestate,  yet  the  property  will  be  ad- 
judged to  have  been  in  him,  by  relation,  immediately  upon  the  de- 
cease.'^    If  he  relies  on  his  constructive  possession,  and  a  conver 

1  Bloxam  v.  Saunders,  4  B.  &  C.  941 ;         6  Eaton  v.  Lynde,  15  Mass.  242;  [Bry- 
Miles  V.  Gorton,  4  Tynv.  295.  ant  v.  Clifford,  13  Met.  138.] 

2  Mil-atc  V.  Kebble,  3  Man.  &  Gr.  100.  ^  jy^  -^Volf  v.  Dearborn,  4  Pick.  466. 
^  Mooics  V.  Wait,  3  Wend.  104.  [A  person  to  whom  a  letter  sent  by  niaU 
*  Wilkinson  v.   King,  2   Campb.  335 ;     is   addressed  may  maintain  an  action  of 

Locschnian  v.  Machin,  2  Stark.  R.  311.  trover  in  a  State  court,  afjainst  the  post- 
But  if  a  consignee  of  goods  for  sale,  at  a  master  who  unlawfully  refuses  to  deliver 
price  not  less  than  a  certain  sum,  sells  it.  Teal  v.  Felton,  12  How.  (U.  S. )  284.] 
them  for  a  less  sum,  it  is  not  a  conversion,  "^  1  Com.  Dig.  341,  tit.  Administration, 
but  the  remedy  is  by  a  special  action  on  B.  10;  Id.  425,  tit.  Action  upon  the  Case 
the  case.  Serjciint  v.  Blunt,  16  .Johns.  74  ;  upon  Trover,  B. ;  Rex  v.  Horsley,  8  East, 
[Lovejoy  v.  Jones,  10  Foster  (N.  H.)  164.  410,  per  Ld.  Elleuborough ;  Doc  v.  Por- 
A  cousignee,  having  authority  to  sell  prop-  ter,  3  T.  R.  13,  16;  Long  v.  Hebb,  Sfy. 
erty  for  the  owner,  sold  it  as' the  property  341  ;  Locksmith  v.  Creswell,  2  Roll.  Abr. 
of  a  person  other  than  the  owner,  and  such  399,  pi.  1;  Anon.  Comb.  451,  jx;r  Holt, 
sale  was  held  a  conversion.  Covell  u.  Hill,  C.  J.  ;  2  Selw.  N.  P.  777  (10th  edit.); 
2  Sclden  (N.  Y.)  374.  A  bailee  in  pos-  Patten  v.  Patten,  1  Alcock  &  Napier,  R. 
session  of  property  for  a  term  not  expired,  493,  504  ;  [Wilson  v.  Shearer,  9  Met.  504.] 
attempted  or  offered  to  terminate  the  bail-  In  WooUey  v.  Clark,  5  B.  &  Aid.  744,  it 
ment ;  and  it  was  held  that  this  gave  the  was  said,  "that,  as  to  the  administrator, 
bailor  a  right  to  resume  possession  of  the  his  title  being  derived  wholly  from  the 
property  forthwith,  and  that  he  could  main-  Ecclesiastical  court,  no  right  vested  in 
tain  trover  therefor  against  the  attaching  him  until  the  grant  of  letters  of  adminis- 
ofHcer,  although  he  (the  bailor)  did  not  in  tration ;  but  the  resolution  of  this  point 
Fact  know  of  the  abandonment  by  the  was  not  essential  to  the  decision  in  that 
bailee.     Hardy  v.  Reed,  6  Cush.  252.1  case,  as  the  defendant,  who  sold  the  gooda 


FART  IV.] 


TROVER. 


559 


sion  after  the  death  of  the  testator  or  intestate,  he  must  produce 
and  prove  at  the  trial  his  letters  testamentary,  or  of  administra- 
tion.^ 

§  642.  (2.)  The  plaintiff  must,  in  the  next  place,  show  that  the 
defendant  has  converted  the  goods  to  his  own  use.  A  conversion^ 
in  the  sense  of  the  law  of  trover,  consists  either  in  the  appropria- 
tion of  the  thing  to  the  party's  own  use  and  beneficial  enjoyment, 
or  in  its  destruction,  or  in  exercising  dominion  over  it,  in  exclu- 
sion or  defiance  of  the  plaintiff's  right,  or  in  withholding  the  pos- 
session from  the  plaintiff,  under  a  claim  of  title,  inconsistent  with 
his  own.2  It  may  therefore  be  either  direct  or  constructive ;  and 
of  course  is  proved  either  directly  or  by  inference.  Every  unlaw- 
ful taking,  with  intent  to  apply  the  goods  to  the  use  of  the  taker, 
or  of  some  other  person  than  the  owner,  or  having  the  effect  of  de- 
stroying or  altering  their  nature,  is  a  conversion.^  But  if  it  does 
not  interfere  with  the  owner's  dominion  over  the  property,  nor  al- 
ter its  condition,  it  is  not.     Upon  these  principles,  it  has  been  held 


as  administrator,  sold  them  after  notice 
of  the  existence  of  the  will,  by  which  the 
plaintirt"  was  apjiointcd  executrix. 

1  Robinson  v.  M'Donald,  2  Kelly,  R. 
119.  [Trover  lies  against  an  executor  for 
a  conversion  by  the  testator  in  his  lifetime. 
Locke  V.  Garrett,  16  Ala.  693  ;  Bramnictt 
V.  Golden.  9  Gill,  9.5.] 

2  Fouldes  V.  WillouKhbv,  8  ^r.  &  "W. 
546-551  ;  Kevwortli  v.  Hill,  3  B.  &  Aid. 
685  ;  Brijtol  v.  Burt,  7  Johns.  254  ;  Mur- 
ray V.  Burlinji,  10  Johns.  172;  Hare  v. 
Pearson,  4  Ired.  76  ;  Page  v.  Hatchett,  10 
Jur.  6'34  ;  Harris  i-.  Saunders,  2  Strobh. 
Eq.  R.  370  ;  Clark  v.  Whitaker,  19  Conn. 
319;  Heald  v.  Carey,  9  Eng.  Law  &  Eq. 
R.  429.  But  the  mere  cutting  down  of  trees 
without  taking  ihem  away  is  not  a  con- 
version. Mires  v.  Solebav,  2  Mod.  245 ; 
[Bray  t'.  Bates,  9  Met.  237  ;  Salisbury  v. 
Gourgas,  10  lb.  462;  Fcrnald  r.  Chase, 
'si  Maine,  289 ;  Fuller  v.  Tabor,  39 
Maine,  519.  Proof  that  the  defendant 
did  some  positive  wrongful  act  is  neces- 
sarv  to  support  an  action  of  trover.  Brom- 
ley" V.  Coxwcll,  2  Bos.  &,  Pul.  438  ;  Ross 
V.  Johason,  5  Burr.  2825  ;  Severin  v.  Kep- 
pell,  4  Esp.  R.  156.  A  sale  of  personal 
property  by  a  mortgagee  before  foreclosure 
is  a  convtrsion  for  which  the  mortgagor 
may  maintain  an  action.  Spaulding  v. 
Barnes,  4  Gray,  330.  To  constitute  a 
joint  conversion  of  personal  property,  the 
acts  of  the  several  defendants  need  not  be 
contemporaneous,  if  their  acts  and  pur- 
poses all  tend  to  the  same  result.     Cram 


V.  Thisscll,  35  Maine,  86.]  [*  Trover  will 
lie  to  recover  the  value  of  coal  dug  by 
the  owner  of  land,  through  a  mistake  of 
boundaries,  out  of  adjoining  land.  For- 
syth V.  Wells,  41  Penn.  State  R.  291.] 

8  Hull.  N.  P.  44 ;  2  Snund.  47  rj,  by 
Williams  ;  Prescott  v.  Wright,  6  Mass.  20 ; 
Pierce  i>.  Benjamin,  14  Pick.  356  ;  Thurs- 
ton i\  Blanciiard,  22  Pick.  18.  But  if  a 
tortious  taking  has  been  subsequently  as- 
sented to  by  tiie  owner,  the  remedy  in  tro- 
ver is  gone.  Hewes  v.  Parkman,  20  Pick. 
90  ;  Rotch  v.  Plawes,  12  Pick.  136;  Clarke 
V.  Clarke,  6  Esp.  61  ;  Brewer  v.  Sparrow, 
7  B.  &  C.  310.  [The  taking  of  hire  from 
the  defendant  in  an  action  of  trover  for  a 
misuser  of  the  bailment  for  hire,  during 
the  pendency  of  the  suit,  is  not  a  waiver  of 
the  conversion.  Harvey  v.  Epes,  12  Gratt. 
153.]  Taking  the  plaintiff's  goods  by 
mistake,  supjwsing  them  to  be  dcfentlant's 
own,  and  a  subsequent  promise  to  restore 
them,  the  performance  of  which  was  neg- 
lected, have  been  held  sufficient  evidenr« 
of  a  conversion.  Durrell  v.  Mosher,  8 
Johns.  445.  See  further  Harrington  v. 
Payne,  15  Johns.  431.  [*  To  show  a  con- 
version, the  plaintitf  must  prove  either  a 
refusal  to  deliver  upon  a  previous  demand, 
when  the  defendant  had  the  goods  in  his 
])Ossession,  and  could  have  complied  with 
the  demand,  or  a  fraudulent  conversion  of 
the  goods  before  the  demand,  or  that  the 
defendant  had  parted  ^\ath  the  goods  so  aa 
to  evade  a  demand.  Andrews  v.  Shattuck, 
32  Barb.  396.] 


560  LAW   OF   EVIDENCE.  [PART  IV. 

that  if  a  ferryman  wrongfully  put  the  horses  of  a  passenger  out  of 
the  boat,  without  further  intent  concerning  them,  it  may  be  a  tres- 
pass, but  it  is  not  a  conversion  ;  but  if  he  makes  any  further  dispo- 
sition of  them,  inconsistent  with  the  owner's  rights,  it  is  a  conver- 
sion.^  So  the  taking  possession  of  the  bankrupt's  goods,  by  hi? 
assignees,  is  a  conversion,  as  against  him,  for  which  he  may  main- 
tain trover,  to  try  the  validity  of  the  commission,  without  making 
a  demand.2  So,  using  a  thing  without  license  of  the  owner  is  a 
conversion ;  as  is  also  the  misuse  or  detention  of  a  thing,  by  the 
finder,  or  other  bailee.^  So,  the  adultei'ation  of  wine  or  other  liq- 
uor, by  putting  water  into  it,  is  a  conversion  of  the  whole  quan- 
tity ;  but  the  taking  away  of  part  is  not  so,  if  the  residue  remains 
in  the  same  state  as  before,  and  is  not  withlield  from  the  owner .^ 
And  though  a  factor,  intrusted  with  goods  for  sale,  may,  in  many 
cases  lawfully  deliver  them  over  to  another  for  the  same  purpose ; 
yet  if  a  bailee  of  goods  deliver  them  over  to  another,  in  violation 
of  the  orders  of  the  bailor,  it  is  a  conversion.^  K  misdelivery  of 
goods,  also,  by  a  wharfinger,  carrier,  or  other  bailee,  is  a  conver- 
sion ;  ^  but  the  accidental  loss  of  them,  by  the  mere  omission  of 
the  carrier,  is  not ;  '^  A  ivrongfid  sale  of  another's  goods  is  also  a 
conversion  of  them  ;  ^  and  though  the  custody  of  the  goods  remains 

1  Foiiklcs  V.  "Willougliby,  8  M.  &  W.  seltine  v.  Stockwell,  30  Maine,  237  ;  Bry- 

.'540.     [If  thfi  bailee  of  pro])erty  during  the  ant  v.  Ware,  lb.  295.] 

term  lor  which  it  was  hired  uses  it  in  a  ^  Bromley  v.  Coxwell,  2  B.  &  P.  438 ; 

ditVcrent  manner  or  for  a  diftorent  pur]iose  Sevds  r.  Hay,  4  T.  R.  260. 

from  tliat  intended  in  the  bailment,  it  is  •>  Devcrcnx  r.  Barclay,  2  B.  &  Aid.  702, 

not  a  conversion   unless   the  property  is  Youl   v.  Ilarbottlc,  1  Peake,  R.  49  ;  Ste- 

thereby  destroyed,  or  the  act  shows  an  in-  venson   v.    Hart,  4  Binij:.  483  ;    Story  on 

tent  to  convert  the  property.     Harvey  v.  Baiim.  §§  4.'30,  451,  545  ^.     [Omitting  sea- 

Epes,  12  Gratt.  153.]                  ,  sonably  to  deliver  goods  will  not  sustain 

■^  Somersctt  v.  Jarvis,  3  Brod.  &  Bing.  2.  trover  against  a  carrier  without  a  demand. 

3  IMulnrave  i-.  Ogden,  Cro.  El.  219;  Ld.  Robinson  v.  Austin,  2  Grav,  504;  Bowlin 

Peter!'   Ileneage,  12  Mod.  519 ;  Whecloek  i'.  Nye,  10  Gush.  416.     See  ante,  §§  218, 

V.  Wheelwright,  5  Mass.  104;    Story  on  219.] 

Bailm.  §§  188,  233,  241,  209,  396  ;  Port-  '  Ross  v.  Johnson,  5  Burr.  2825  ;  Kirk- 
land  I5auk  V.  Stubbs,  6  Mass.  422,  427  ;  man  v.  Hargreaves,  1  Sclw.  N.  P.  425  ; 
Ripley  v.  Dolbier,  6  Shepl.  382;  [Wood-  Dwight  r.  Brewster,  1  Pick.  50,53;  Owen 
man  v.  Hubbard,  5  Foster  (N.  H.)  67.]  v.  Lewyn,  1   Ventr.  223;    Anon.  2  Salk. 

*  Richardson  v.  Atkinson,  1  Stra.  586;  655;  Hawkins  v.  Hoft'man,  6  Hill  (N.  Y.) 

Phil])ott    r.    Kelley,   3    Ad.    &   El.    306;  Rep.  580.     There  are  two  cases  seeming  to 

Deneh  v.  Walker,  14  Mass.  500;  Young  the  contrary  of  this;  but  in  one  of  thera 

V.  Mason,  8  Pick.  551.     The  mere  fact  of  (Greenfield  Bank  v.  Leavitt,  17  Pick.  1) 

a  bailee's  bottling  a  cask  of  wine  is  not  this  point  was  not  raised,  but  the  defend- 

cvidenee   of  a   conversion.      Ibid.      [The  ant's  liability  for  a  loss  was  assumed,  the 

fraudulent  mixing,  by  one  person,  of  his  case  turning  wholly   on   the   question   of 

own  goods  with  those  of  another,  so  that  damages;  and  in  the  other   (La  IMace  v. 

the  property  of  each  can  be  no  longer  dis-  Aupoix,  1  Johns.  Cas.  406)  the  case  suf- 

tinguished,  is   a  conversion,  and   the   in-  fieiently   shows   that  there  was  an  actuaj 

jured  ]iarty  may  maintain   trover  for  the  conversion, 

whole  against  a  bona  fide  purchaser.     Hes-  ^  Edwards  i'.  Hooper,  11  M.  &  W.  363  ; 


PART  IV.]  TROVER.  561 

unaltered,  yet  the  delivery  of  the  documentary  evidence  of  title, 
and  the  receipt  of  the  value,  completes  the  act  of  conversion ;  * 
but  a  mere  purchase  of  goods,  in  good  faith,  from  one  who  had  no 
right  to  sell  them,  is  not  a  conversion  of  them,  against  the  lawful 
owner,  until  his  title  has  been  made  known  and  resisted.^  Nor  is 
the  averment  of  a  conversion  supported  by  evidence  of  nonfeasance 
alone  ;  as  if  a  factor,  employed  to  sell  goods,  neglects  to  sell  them, 
or  sells  them  without  taking  the  requisite  security .^ 

§  643.  On  the  other  hand,  though  there  has  been  an  actual  use 
or  disposition  of  the  goods  of  another,  yet  if  it  was  done  under  the 
pressure  of  moral  necessity,  a  license  will  sometimes  be  presumed, 
and  it  will  not  be  a  conversion.  Such  is  the  case,  where  a  ship- 
master throws  goods  into  the  sea,  to  save  the  ship  from  sinking.'* 
So  it  is,  if  the  thing  was  taken  to  do  a  work  of  charity,  or  to  do  a 
kindness  to  the  owner,  and  without  any  intention  of  injury  to  it,  or 
of  converting  it  to  his  own  use.^ 

§  644.  Where  the  circumstances  do  not,  of  themselves,  amount 
to  an  actual  conversion,  it  will  be  incumbent  on  the  plaintiff  to 
give  evidence  of  a  demand  and  refusal,  at  any  day  prior  to  the  com- 
mencement of  the  action,  the  time  not  being  material,  and  also  to 
show  that  the  defendant,  at  the  time  of  the  demand,  had  it  in  his 
power  to  give  up  the  goods.^    But  the  demand  and  refusal;  are 

Featherstonhaiiffh  v.  Johnston,  8  Taunt,  owner  is  necessary  before  commencing  an 

237  ;  Lowell  I'.  Slartin,  4  Taunt.  799  ;  Al-  action  therefor.]                      „    ot,    .oo 

Ba<^'er  v    Close,  10  M.  &  W.  576  ;  Robin-  »  Bromley  r.  Coxwell,  2  B.  &  F.  438  ; 

son  V  i^oil':   1  M.  &  Rob.  239;  Everett  v.  Cairns  v.  Bleecker,  12  Johns.  300  ;  Jenner 

Coffin,    6  Wend.    603;  Kvle   v.  Gray,  11  r.  Joliffe,  6  Johns.  9.     [Nor  does  the  forci- 

Ala.  R.  233.     But  if  the  sale  was  by  de-  bly  interposing  obstacles   to   prevent  tha 

fendant's   a"-ent  without  his    knowledge,  owner  from  obtaining  possession  of  the 

qua:re ;  and  "see  Machell  v.  Ellis,  1  C.  &  K.  property,  by  one  who  has  not  the  posses- 

682  sion  thereof,  actual  or  constructive,  amount 

i"  Jackson  v.  Anderson,  4  Taunt.  24.  to   a  conversion.     Boobier  v.  Boobier,  39 

2  McCombie  v.   Davies,   6   East,   538 ;  Maine,  406.] 

Baldwin  v.  Cole,  6  Mod.  212.     [*And  not  *  Bird  i-.  Astock,  2   Bulstr.   280.     See 

onlv  are  there  decisions  that  "  a  mere  pur-  also  Clarke  v.  Clarke,  6  Esp.  R.  81. 

cha'se"   of  property,  without  taking  pos-  ^  Drake  v.  Shorter,  4  Esp.  R.  195.     And 

session  of  it,  is  not  a  conversion  of  it,  but  see    Sparks   v.   Purdy,  11  Mis.  219.     [A 

also  decisions  that  a  purchase,  receiving  a  sun-eyor  of   highways   lawfully  removed 

pled"-e  or  other  bailment,  &c.  of  property  wood  which  was  placed  within  the  limits  of 

fronrone  who  had  no  right  to  dispose  of  it,  the  highway,  and  gave  notice  to  the  owner 

and  takino- possession  thereof  without  any  of  the  wood  where  he  had  put  it,  and  that 

further  ac"t  of  dominion  over  it,  does  not  he  might  have  it  on  paying  for  the  removal 

alwavs    constitute    a    conversion  of    it."  of  it ;  and  this  was  held  not  to  be  a  con- 

Metcalf,  J.     Gilmore  v.  Newton,  9  Allen,  version   of  it,  in  an  action  by  the  owner 

172.     In  this  case  it  was  held  that  pur-  against  the  surveyor.    Plummer  ».  Brown, 

chasing  a  horse  in   good  faith  from  one  8  Met.  578.] 

who  had  no  right  to  sell  him,  and  subse-  ^  RuH.  n.  P.  44 ;  Vincent  r.  Coniell,  13 

quentlv  exercising  dominion  over  him  by  Pick.  294  ;  Nixon  v.  Jenkins,  2  H.  Bl.  135; 

lettin"-"him  to  another  person,  will  amount  Edwards  v.  Hooper,  11  M.  &  W.  366,  per 

to  a  conversion ;  and  no  demand  by  the  Parke,   B. ;  Smith  v.   Young,  1    Campb. 
VOL.  IT                                             36 


662 


LAW   OF  EVIDENCE. 


[part  IV. 


only  evidence  of  a  prior  conversion,  not  in  itself  conclusive,  but  lia- 
ble to  be  explained  and  rebutted  by  evidence  to  the  contrary.^ 
The  refusal,  moreover,  must  be  absolute,  amounting  to  a  denial  of 
the  plaintiflTs  title  to  the  possession  ;  and  not  a  mere  excuse  or 
apology  for  not  delivering  the  goods  at  present ;  ^  but  it  need  not 
be  expressed ;  it  may  be  inferred  from  non-compliance  with  a 
proper  demand.^  If,  however,  tlie  refusal  is  qualified  by  a  condi- 
tion which  the  party  had  no  right  to  impose,  it  is  evidence  of  a 
conversion.*  And  so  it  is,  if  it  is  grounded  on  a  claim  of  right  by 
a  third  party .^  If  the  demand  was  made  by  an  agent,  the  plaintiff 
must  also  prove  his  authority  to  make  it ;  otherwise  the  refusal 
will  be  no  evidence  of  a  conversion.^  And  if  the  demand  is  made 
upon  a  bailee  of  goods,  intrusted  to  him  to  keep  on  the  joint  ac- 
count of  several  owners,  a  demand  by  one  alone,  without  the  au- 
thority of  the  others,  is  not  sufficient.^  So  also,  if  goods  are  bailed 
to  two,  a  demand  on  one  alone  is  not  sufficient  to  charge  the  other 
in  trover,  though  it  may  suffice  to  charge  him  in  an  action  ex  eon- 
tractu.^ 


441.  See  Kinder  r.  Shaw,  2  Mass.  398; 
Chamberlain  v.  Shaw,  18  Pick.  278 ;  Leon- 
ard V.  Tidd,  2  Met.  6  ;  Jones  v.  Fort,  9  B. 
&  C.  764 ;  Anon.  2  Salk.  655  ;  Kelsey  v. 
Griswokl,  6  Barb.  S.  C.  R.  436.  [A  de- 
mand for  goods  alleged  to  have  been  con- 
verted is  not  of  itself  a  waiver  of  a  previ- 
ous demand  for  the  same  goods,  with 
which  the  wrongdoer  refused  to  comply, 
but  it  may  go  to  the  jury  as  evidence  of  a 
waiver  of  the  previous  demand.  Winter- 
bottom  V.  Morehouse,  4  Gray,  332.] 

1  2  Saund.  47  e,  by  Williams  ;  Wilton  v. 
Girdlestone,  5  B.  &  Aid.  847,  per  Cur. ; 
Thompson  v.  Rose,  16  Conn.  71.  Ordina- 
rily tlie  jury  are  instructed  to  find  a  con- 
version, upon  evidence  of  a  demand  and 
refusal ;  but  it  will  not  be  inferred  by  the 
court  as  a  deduction  of  law.  Mires  v. 
Solebay,  2  Mod.  244;  10  Co.  56,  57;  2 
Roll.  Abr.  693  ;  Jacoby  v.  Laussat,  6  S.  & 
R.  300;  [Folsom  v.  Manchester,  11  Cush. 
334,  337  ;  Magee  v.  Scott,  9  lb.  148  ;  Piatt 
V.  Tuttle,  23  Conn.  233.]  [*  Beckman  v. 
McKay,  14  Cal.  250.]  A  cow,  going  at 
large  in  the  highway,  witbout  a  keeper, 
joined  a  drove  of  cattle  without  the  knowl- 
edge of  the  driver,  and  was  driven  with 
them  to  a  distant  town,  and  there  depas- 
tured with  the  others  during  the  summer. 
After  the  driver's  return,  the  owner  of  the 
cow  called  on  him  to  make  inquiries,  and 
demanded  his  cow ;  and  on  the  return  of 
the  drove  in  the  autumn,  the  driver  deliv- 
ered the  cow  to  the  owner,  who  received 


her.  In  an  action  of  trover  against  the 
driver,  it  was  held,  that  his  omission  to  de- 
liver the  cow  on  demand  was  not  a  proof 
of  a  conversion.  Wellington  v.  Went- 
worth,  8  Met.  548.  [*  See  also  Burroughes 
V.  Bayne,  5  H.  &  N.  296.] 

2  Severin  v.  Keppell,  4  Esp.  R.  156. 
And  see  Addison  v.  Round,  7  C.  &  P.  285  ; 
Philpott  V.  Kelley,  3  Ad.  &  El.  106  ;  Pat- 
tison  V.  Robinson,  5  M.  &  S.  105  ;  Caunce 
V.  Spanton,  7  M.  &  G.  903. 

3  Watkins  v.  Woolley,  1  Gow,  R.  69 ; 
Golightly  V.  Ryn,  Lofft.  R.  88 ;  Davies  v. 
Nicholas,  7  C.  &  P.  339.  A  demand  in 
writing,  left  at  the  defendant's  house,  is 
sufficient.  Ibid. ;  Logan  v.  Houlditch,  I 
Esp.  22 ;  [Wilde  v.  Waters,  32  Eng.  Law 
&  Eq.  422.] 

*  Davies  u.  Vernon,  6  Ad.  &  El.  443,  N.  S. 

6  Caunce  v.  Spanton,  7  M.  &  G.  903 ; 
Zachary  v.  Pace,  4  Eng.  212. 

^  Gunton  V.  Nurse,  2  Brod.  &  Bing. 
447  ;  [Robertson  v.  Crane,  27  Miss.  362.] 

■7  May  V.  Harvey,  13  East,  197.  [Where 
goods,  intrusted  to  a  bailee,  come  into  the 
hands  of  a  third  person,  a  demand  on  such 
person  by  the  bailee,  though  not  specially 
authorized  thereto  by  the  owner,  and  a  re- 
fusal, is  evidence  of  a  conversion.  Brad- 
ley V.  Spofford,  3  Foster  (N.  H  )  444.] 

8  NicoU  );.  Glennie,  1  M.  &  S.  588 ; 
White  V.  Demary,  2  N.  Hamp.  546  ;  Gris- 
wold  V.  Plumb,  13  Mass.  298;  Ante,  Vol. 
1,  §§  112,  174;  Mitchell  v.  Williams.  4 
Hill  (N.  Y.)  Rep.  13. 


PART  IV.]  TROVER.  o63 

§  645.  Even  an  absolute  refusal  is  not  always  evidence  of  a  con- 
version. Thus,  where  the  plaintiff's  goods  were  attached  in  the 
hands  of  his  bailee,  who  on  that  account  refused  to  deliver  them, 
it  was  held  no  conversion. ^  So  it  is  where  the  possessor  of  goods 
refuses  to  deliver  them  up,  until  some  ownership  is  shown  in  the 
claimant ;  ^  or  until  some  other  condition  lawfully  imposed  by  him 
is  complied  with  ;  ^  as  where  a  servant,  having  the  custody  of 
goods-  apparently  his  master's,  refuses  to  deliver  them  without  an 
order  from  his  master.*  So,  if  the  bailee  of  goods  asks  time  to  re- 
turn them  to  the  person  from  whom  he  received  them,  that  the 
owner  may  claim  them  from  the  latter,  rather  than  from  himself ;  ^ 
or  if  the  owner  has  coupled  his  demand  with  a  claim  that  the  goods 
shall  be  returned  in  a  certain  plight,  in  the  way  of  repairs,  which 
the  other  party  denies  his  liability  to  make  ;  ^  this  is  not  evidence 
of  a  conversion.  So  where  the  principal  refers  the  claimant  to  his 
agent,  in  whose  hands  the  goods  actually  are  at  the  time ;  "^  and 
when  a  general  agent  refuses  to  deliver  the  goods,  the  refusal  not 
having  been  directed  by  his  principal .^  But  where  the  refusal  is 
within  the  scope  of  the  agent's  authority,  it  is  otherwise.  Thus  a 
refusal  by  a  pawnbroker's  servant  has  been  held  evidence  of  a  con- 
version by  his  master.^  If,  however,  the  servant  actually  disposes 
of  the  property,  or  withholds  it,  though  for  his  master's  use,  as  if 
he  sells  it,  or  tortiously  takes  it,  or,  it  being  a  negotiable  bill  of 
exchange  delivered  to  him  by  an  agent  for  discount,  he  passes  it 
to  the  agent's  credit  in  his  master's  books,  and  afterwards  refuses 
to  restore  it  to  the  principal,  it  is  a  conversion  by  the  servant.^" 
So,  if  the  demand  is  qualified  by  the  claimant's  requiring  that  the 
goods  be  restored  in  their  original  plight,  a  general  refusal  is  not 
evidence  of  a  conversion.^^ 

§  646.  If  the  parties  are  tenants  in  common  of  the  chattel  which 
is  the  subject  of  this  action,  it  will  not  be  sufficient  for  the  plaintiff 

1  Verral  v.  Robinson,  2  C.  M.  &  R.  well  v.  Few,  7  Johns.  302.  But  see  Judah 
495.  V.  Kemp,  2  Johns.  Cas.  411. 

2  Solomons  v.  Dawes,  1  Esp.  82,  per  Ld.  ^  Dowd  v.  Wadsworth,  2  Dev.  130. 
Kenyon;  Green  v.  Dunn,  3  Campb.  215,  *>  Rushworth  v.  Taylor,   3   Ad.  &   El. 
n. ;  Zacharv  v.  Pace,  4  Eng.   212;   Carr  699,  N.  S. 

V.    Gale,   Daveis,    R.   333.     [The  refusal  ^  Canot  v.  Hughes,  2  "Ring.  N.  C.  448. 

to  deliver  must  be  put  distinctly  on  this  ^  Pothonier  v.  Dawson,  Holt,  Cas.  383. 

ground,  otherwise  it  will  be  evidence  of  ^  Jones  v.  Hart,  2  Salk.  441.     And  see 

a  conversion.     Ingalls  v.  Balkley,  15  El.  Catterall  v.  Kenyon,  6  Jur.  507. 

224.]  1"  Cranch  ».  White,  1  Bing.  N.  C.  414  ; 

3  Davies  v.  Vernon,  6  Ad.  &  El.  443,  Perkins  i;.  Smith,  1  Wils.  328 ;  Stephens 
N.  S.  V.  Elwall,  4  M.  &  S.  260. 

*  Alexander  v.  Southey,  5  B.  &  Aid.  ii  Rushworth  v.  Taylor,  6  Jur.  945 ;  3 
247  ;  Cole  v.  Wright,  4  Taunt.  198 ;  Shott-    Ad.  &  El.  N.  S.  699,  S.  C. 


564 


LAW   OF   EVIDENCE. 


[part  IV 


to  prove  that  the  defendant  has  taken  the  chattel  into  his  exclusive 
custody,  and  withholds  the  possession  from  the  plaintiff;  for  this 
either  party  may  lawfully  do,  each  being  equally  entitled  to  the 
possession  and  use.^  And  for  the  like  reason  this  action  will  not 
lie  against  one  part  owner  who  has  changed  the  form  of  the  chat- 
tel by  converting  it  to  its  ultimately  intended  and  profitable  use.'^ 
But  the  plaintiff,  in  such  cases,  must  prove  that  the  act  of  the  de- 
fendant was  tortious,  having  the  effect,  so  far  as  the  plaintiff  is 
concerned,  of  a  total  destruction  of  the  property .^ 


1  Barnardiston  v.  Chapman,  cited  4 
East,  1 20  ;  Holliday  r.  Camsell,  1  T.  R. 
658  ;  Daniels  v.  Daniels,  7  Mass.  137,  per 
Parsons,  C.  J.;  [Bryant  v.  Clifford,  13 
Met.  138.] 

2  Fennings  v.  Ld.  Greenfield,  1  Taunt. 
241. 

3  1  Taunt.  249  ;  Co.  Litt.  200  a,  b  ; 
Bull.  N.  P.  34,  35;  2  Saund.  47,  h,  by 
Williams;  Guythcr  v.  Pettijohn,  6  Ired. 
388;  Weld  v.  Oliver,  21  Pick.  559. 
Whether  the  absolute  sale  of  the  whole  of 
the  entire  chattel  by  one  of  several  owners 
in  common  is  of  itself  sufficient  evidence 
of  a  conversion  to  make  him  liable  in 
trover  at  the  suit  of  his  co-tenant,  is  a 
point  upon  which  there  is  some  difference 
of  opinion.  The  rule  of  the  common  law, 
that  trespass  lies  where  one  party  destroys 
the  thing  owned  in  common,  is  not  con- 
troverted. And  it  is  generally  conceded 
that  the  party  is  equally  liable  in  trover 
for  an  actual  conversion  of  the  property 
to  his  own  use,  at  least,  where  the  act  of 
appropriation  is  such,  as  finally,  by  its  na- 
ture, to  preclude  the  other  party  from  any 
future  enjoyment  of  it.  Such  is  the  case 
where  it  is  consumed  in  the  use.  And 
upon  the  same  principle,  where  the  sale  is 
one  of  a  series  of  acts,  whether  by  the 
vendor  or  vendee,  which  result  in  putting 
the  property  forever  out  of  the  reach  of 
the  other  party,  it  is  a  conversion.  Such 
was  the  case  of  Barnardiston  v.  Chapman, 
4  East,  121,  where  the  defendant  forcibly 
took  the  ship,  owned  in  common,  from  the 
plaintiff's  possession,  changed  her  name, 
and  sold  her  to  a  stranger,  in  whose  pos- 
session she  was  lost  in  a  storm  at  sea. 
Here  the  court  resolved,  that  the  taking 
from  the  plaintiff's  possession  was  not  a 
conversion ;  but  left  it  to  the  jury  to  find, 
from  tiie  circumstances,  that  the  ship 
was  destroyed  by  the  defendant's  means ; 
which  they  did,  and  it  was  held  well.  But 
a  sale  alone  was  deemed  insufficient  to  es- 
tablish a  conversion,  by  the  opinion  of  the 
whole  court,  in  Heath  c.  Hubbard,  4  East, 
110,  128,  though  the  case  itself  was  de- 
cided on  the  ground,  that  in  the  instance 


before  them  there  was  not  a  legal  sale. 
Such  also  was  the  opinion  of  Best,  J.,  in 
Barton  v.  Williams,  5  B.  &  Aid.  395 ;  to 
which  Holroyd,  J.,  inclined  ;  though  Bay- 
ley,  J.,  was  of  a  different  opinion,  and  Ab- 
bott, C.  J.,  was  inclined  to  think  with  him, 
that  the  sale  in  that  case,  which  was  of 
India  warrants,  was  a  conversion.  But 
afterwards,  in  the  same  case,  upon  a  writ 
of  error  in  the  Exchequer  Cliamber,  1 
M'Cl.  &  Y.  406,  415,  416,  the  court  ob 
served,  that  there  was  "  great  weight  in 
the  argument,"  that  the  original  plaintiffs, 
being  tenants  in  common  with  the  defend- 
ants, could  not  maintain  trover  in  a  court 
of  law  on  the  ground  of  a  sale  ;  but  they 
did  not  decide  tiie  cause  on  that  point,  be- 
ing of  opinion  that  the  tenancy  in  com- 
mon had  been  previously  severed  by  the 
parties.  In  this  country,  in  a  case  where, 
two  being  tenants  in  common  of  a  quan- 
tity of  wool,  one  of  them,  having  the  pos- 
session, sold  a  part  of  it,  and  retained  the 
residue,  claiming  the  whole  as  his  own, 
and  refusing  to  deliver  up  any  part  to  the 
other,  this  was  held  not  such  a  conversion 
of  the  property  as  to  sustain  an  action  of 
trover.  Tubbs  v.  Richardson,  6  Verm. 
R.  442.  See  also  Selden  v.  Hickock,  2 
Caines,  R.  166.  The  same  doctrine  was 
held  in  Oviatt  v.  Sage,  7  Conn.  95,  where 
one  tenant  in  common  of  a  quantity  of 
cheese  had  sold  the  whole  to  a  stranger. 
That  there  must  either  be  "  a  destruction 
of  the  chattel,  or  something  that  is  equiv- 
alent to  it,"  was  the  opinion  of  Chambre, 
J.,  in  Fennings  v.  Ld.  Greenville,  I  Taunt. 
249.  And  accordingly,  in  this  case,  it  was 
resolved,  that  the  conversion  of  the  chat- 
tel into  its  ultimately  destined  and  profit- 
able material,  as,  of  a  whale  into  oil,  was 
no  severance  of  the  tenancy  in  common. 
On  the  same  principle,  namely,  that  while 
Ihe  thing  substantially  exists  within  the 
reach  of  the  party,  the  tenancy  in  common 
remains  unchanged,  it  has  been  repeatedly 
held,  that  a  sale  of  the  entire  chattel  by 
the  sheriff,  on  an  execution  against  one  of 
the  owners,  does  not  sever  the  tenancy,  or 
devest   the  property  of  the  others,      St> 


PART  IV.] 


TROVER. 


565 


§  647.   If  trover  is  brought  by  husband  and  wife,  for  goods  wliich 
were  the  sole  property  of  the  feme,  and  were  taken  before  the 


John  V.  Standring,  2  Johns.  468 ;  Merse- 
reau  v.  Norton,  15  Johns.  179.  But  a  dis- 
position of  a  perishable  article  by  one  joint 
owner,  which  prevents  the  otiier  from  re- 
covering the  possession,  is  deemed  equiva- 
lent to  its  destruction.  Lucas  v.  Wasson, 
3  Dey.  Rep.  398  ;  confirmed  in  Cole  v. 
Terry,  2  Dev.  &  Bat.  252,  254.  See  also 
Farrar  v.  Beswick,  1  M.  &  W.  688 ;  May- 
hew  V.  Herrick,  18  Law  J.  179,  C.  P. 

But  there  are  cases,  on  the  other  hand, 
in  which  it  has  been  said  that  a  sale  alone 
by  one  tenant  in  common  is  sufficient  to 
charge  him  in  trover  for  a  conversion  of 
the  entire  chattel.  The  earliest  and  lead- 
ing case  to  this  effect  is  that  of  Wilson 
et  al.  V.  Reed,  3  Johns.  175;  in  which  it 
appeared  that  the  plaintiff  and  one  Gibbs 
were  joint  owners  of  a  hogshead  of  rum 
and  a  pidr  of  scale  beams,  which  the  sher- 
iff seized  and  sold  in  toto  to  the  defendant, 
by  virtue  of  an  execution  against  Gibbs. 
The  defendant  sold  the  rum  at  retail  to 
his  customers  ;  and  in  an  action  of  trover 
brought  against  him  for  the  goods  by  the 
other  two  owners,  the  judge  at  Nisi  Prius 
instructed  the  jury,  that  the  retailing  of 
the  rum  by  the  defendant  was  in  law  a  de- 
struction, so  as  to  enable  the  plaintiffs  to 
maintain  the  action  to  this  extent ;  and 
his  instructions  were  iield  correct.  The 
learned  judge,  who  delivered  the  opinion 
of  the  court  in  bank,  placed  it,  as  to  this 
point,  on  the  general  ground,  that  a  sale 
was  a  conversion  of  the  property.  But  as 
in  this  case  the  property  had  actually  been 
consumed  by  the  vendee,  beyond  the  pow- 
er of  recovery,  it  was  to  all  intents  an  act- 
ual conversion,  and  the  general  remark 
was  wholly  uncalled  for  by  the  case  in 
judgment.  The  same  doctrine,  however, 
was  recognized  in  Hyde  v.  Stone,  9  Cow- 
en,  R.  230.  This  was  an  action  of  trover 
for  certain  articles  of  household  furniture, 
farming  utensils,  and  other  personal  prop- 
erty, of  which  the  plaintiff  was  tenant  in 
common  with  his  step-father,  the  defend- 
ant. It  was  admitted  by  the  defendant, 
that  some  of  these  articles  had  been  sold 
by  him  at  different  times  since  his  mar- 
riage, during  a  period  of  six  or  seven 
years ;  and  that  others  had  been  destroyed, 
and  others  nearly  worn  out ;  of  all  which 
it  appeared  that  he  had  exhibited  an  ac- 
count, estimating  the  value  of  the  several 
articles,  and  charging  the  plaintiff  for  the 
value  of  his  board,  &c.,  leaving  a  balance 
due  to  the  plaintiff,  for  which  he  admit- 
ted himself  liable,  and  pi'omised  to  pay. 
Hereupon  the  judge  instructed  the  jury 
that  the  plaintiff  was  entitled  to  recover 


the  value  of  his  share  of  the  goods ;  and 
these  instructions  were  held  correct.  Here 
also  it  is  manifest,  that  the  articles  which 
had  been  sold  were  utterly  and  forever 
gone  beyond  the  reach  of  the  plaintiff,  by 
means  of  the  wrongful  act  of  the  defend- 
ant ;  and  that  as  to  these,  as  well  as  those 
destroyed,  the  proof  of  actual  conversion 
was  complete.  The  remark,  therefore,  of 
the  learned  judge,  who  delivered  the  opin- 
ion of  the  court,  that,  for  a  sale,  trover 
will  lie  by  one  tenant  in  common  against 
another,  referring  to  the  case  of  Wilson 
V.  Reed,  was  not  called  for  by  the  case  be- 
fore him,  and  may  be  regarded  as  an  obiter 
dictum.  A  new  trial  having  been  granted 
upon  other  grounds,  the  jury  were  again 
instructed  that  the  plaintiff  was  entitled 
to  recover  the  value  of  his  two  thirds  of 
all  the  property  sold,  lost,  or  destroyed. 
But  it  is  observable  that  the  court,  in 
their  final  judgment  (7  Wend.  356-358) 
regarded  the  property  as  wholly  lost  to 
the  plaintiff  by  the  fault  of  the  defendant ; 
the  only  proposition  laid  down  as  the  ba- 
sis of  their  judgment  being  the  settled 
doctrine,  that  trover  will  lie  by  one  tenant 
in  common  against  another  for  the  loss 
or  destruction  of  the  chattel  while  in  his 
possession.  Of  a  similar  character  was 
the  case  of  Mumford  v.  McKay,  8  Wend. 
442,  which  was  a  sale  of  wheat  in  the 
grain ;  and  of  Farr  v.  Smith,  9  Wend. 
338,  which  was  a  sale  of  wheat  in  the 
sheaf;  in  both  of  which  cases  the  conver- 
sion was  actual ;  though  in  both  also,  and 
apparently  without  much  consideration,  a 
sale  seems  to  have  been  taken  as  in  itself, 
and  in  all  circumstances,  a  conversion. 
But  the  point  was  subsequently  brought 
directly  before  the  Supreme  Court  of  the 
same  state,  in  White  v.  Osborne,  21  Wend. 
72,  which  was  the  sale  of  an  entire  sloop 
plying  on  Lake  Champlain ;  which  was 
held  a  conversion.  The  decision  of  the 
court  in  this  case  was  placed  partly  on  the 
ground  of  the  dicta  above  quoted,  and 
partly  on  the  decision  in  Wilson  v.  Reed, 
Mumford  v.  McKay,  and  Hyde  v.  Stone, 
which  have  just  been  considered.  Subse- 
quently it  has  been  held  in  New  York, 
that  if  the  sheriff  sells  the  entire  property 
in  goods  owned  by  two  on  an  execution 
against  one  of  them  only,  it  is  an  abuse 
of  his  legal  authority,  which  renders  him 
liable  as  a  trespasser  ab  initio.  Waddell 
V.  Cook,  Hill  (N.  Y.)  Rep.  47.  See  also 
Melville  v.  Brown,  15  Mass.  82,  which, 
thougii  briefly  reported,  was  in  fact  very 
elaborately  argued  and  well  considered. 
But  this  point  stands  entirely  clear  of  the 


566  LAW   OF  EVIDENCE.  [PART  IV. 

marriage,  proof  of  a  conversion  before  or  after  the  marriage  will 
support  the  action ;  bnt  if  the  husband  sues  alone,  he  must  prove 
a  conversion  after  the  marriage.^  If  the  action  is  against  the  hus- 
band and  wife,  the  plaintifif  must  aver  and  prove  either  a  conver- 
sion by  the  wife  alone,  before  the  marriage,  or  a  subsequent  con-, 
version  by  the  joint  act  of  both ;  and  it  seems  that,  in  the  latter 
case,  the  evidence  ought  to  show  some  act  of  conversion  other  tlian 
that  which  merely  goes  to  the  acquisition  or  detention  of  the  prop- 
erty to  their  use  ;  for  if  the  goods  remain  in  specie  in  their  hands, 
it  is  a  conversion  only  by  the  husband.^ 

§  648.  The  defence  of  this  action  in  the  United  States,  when  it 
does  not  consist  of  matters  of  law,  is  almost  universally  made  un- 
der the  general  issue  of  not  guilty ;  a  special  plea  in  trover  being 
as  seldom  seen  here  as  it  was  in  England  under  the  old  rules  of 
practice.  And  though  in  the  latter  country  tliis  plea  is  now  held, 
and  perhaps  wisely,  to  put  in  issue  only  the  fact  of  conversion,  and 
not  its  character,  as  rightly  or  otherwise,  nor  any  other  matter  of 
inducement  in  the  declaration,  such  as  the  title  of  the  plaintiff,  nor 
any  matter  of  title  or  claim  in  the  defendant,  or  of  subsequent  sat- 
isfaction or  discharge  of  the  action  ;  yet  in  this  country,  as  for- 
merly in  England,  this  plea  still  puts  the  whole  declaration  in 
issue.^  Under  it,  therefore,  the  defendant  may  prove,  by  any  com- 
petent evidence,  that  the  title  to  the  goods  was  in  himself,  either 
absolutely,  as  general  owner,  or  as  joint  owner  with  the  plaintiff, 
or  specially  as  bailee,  or  by  way  of  lien  ;  *  or  that  he  took  the  goods 
for  tolls,  or  for  rent  in  arrear ;  ^  or  he  may  disprove  the  plaintiff's 
title  by  showing  a  paramount  title  in  a  stranger,  or  otherwise  ;  ^  or 

question,  whether  one  tenant  in  common  ^  2  Selw.  N.  P.  1068  (2d  Am.  edit.); 

may  have  trover  for  a  sale  only  by  the  1   Chitty,  PI.  436  (5th  Am.  edit.)  ;  Bull, 

other.      See    further    Lowe   v.   Miller,   3  N.  P.  48. 

Gratt.  205;   Hurd  ij.  Darling,  14  Vt.  214;  «  Skinner  v.   Upshaw,     2   Ld.   Rayra. 

Weld  V.   Oliver,  21   Pick.   559  ;  Eains  v.  752  ;  Bull.  N.  P.  45.     But  to   rebut   the 

McMarry,   4    Humph.    356.      [See    also  evidence  of  a  demand  and  refusal,  he  must 

Wheeler    v.    Wheeler,    33    Maine,    347 ;  show   that  he  mentioned  his  lien   at   the 

White  w.  Morton,  22  Vt.  15;  Perminter  ».  time   of    refusal.      Boardman    v.    Sill,    1 

Kelly,  18  Ala.  716.]     [*  In  Vermont  it  is  Campb.  410  n.     See  further  Laclouoh  v. 

held  that  the  sale  of  an  entire  chattel  by  Towle,  3  Esp.  114,  and  the  cases  of  liea 

one  tenant  in  common  to  a  third  person  collected   in    Roscoe  on    Evid.   408-412 

is  not  a  conversion  of  it,  so  as  to  give  his  (1st   Am.    edit.),    517-524    (6th    Lond. 

co-tenant  a  right  to  maintain  an  action  of  edit.). 

trover.     Sanborn  v.  Morrill,   15  Vt.  700.  ^  Wallace?'.  King,  1  H.  Bl.  13;  Kline 

Burton  v.  Burton,  27  Vt.  95.]  v.  Husted,  3  Caines,  R.  275 ;  Shipwick  v. 

1  2  Saund.  47  g,  by  Williams.  Blanchard,  6  T.  R.  298. 

2  2  Saund.  47  h,  i,  by  Williams  ;  Dra-  6  Dawes  v.  Peck,  8  T.  R.  330  ;  Scher- 
perw.  Fulkes,  Yelv.  165,  and  note  (1),  by  merhorn  v.  Van  Volkenburg,  11  Johns. 
Metcalf;  Keyworth  v.  Hill,  3  B.  &  Aid.  529;  Kennedy  v.  Strong,  14  Johns.  128; 
683.  Rotan  v.  Fletcher,  15  Johns.  207. 


PART  IV.]  TROVER.  56'/ 

he  may  prove  facts  showing  a  license  ;  ^  or,  a  subsequent  ratifica- 
tion of  the  taking  ;  ^  or,  that  the  plaintiff  has  discharged  other 
joint  parties  with  the  defendant,  in  the  wrongful  act  complained 
of.^  It  lias  been  said  that  a  release  is  the  only  special  plea  in  tro- 
ver ;  *  but  the  statute  of  limitations  also  is  usually  pleaded  spe- 
cially ;  ^  and  indeed  there  seems  to  be  no  reason  why  the  same 
principle  should  not  be  admitted  here  which  prevails  in  other  ac- 
tions, namely,  that  the  defendant  may  plead  specially  anything 
which,  admitting  that  the  plaintiff  had  once  a  cause  of  action,  goes 
to  discharge  it.^ 

§  649.  The  measure  of  damages  in  this  action  has  already  been 
considered  under  its  appropriate  head."  It  may  be  added  that 
special  damages  are  recoverable,  if  particularly  alleged.^  If  the 
subject  is  a  bill  of  exchange,  or  other  security,  the  plaintiff  is  ordi- 
narily entitled  to  the  sum  recoverable  upon  it,  though  the  defend- 
ant may  have  sold  it  for  a  less  sum.^  And  though  the  defendant 
cannot,  under  the  general  issue,  show  the  non-joinder  of  another 
part  owner,  to  defeat  the  action,  yet  he  may  give  that  fact  in  evi- 
dence, in  order  to  reduce  the  plaintiff's  damages  to  the  value  of 
his  own  interest  or  share  in  the  property. ^°    Where  the  property 

1  Clarke  v.  Clarke,  6  Esp.  R.  61 ;  Bird     Judgment  recovered  (though  without  sat- 
V.  Astock,  2  Bulstr.  280.  isfactiou)    in   trover  for  conversion   by  a 

'^  Hewes    v.    Parkraan,    20   Pick.    90;  wrongful   sale,   is  a  bar  to  an  action  for 

[^infe,  §  642  ;  Harvey  v.  Epes,  12  Gratt.  money  had  and  received  for  the  proceeds 

153  ;  Firemen's  Ins.  Co.  v.  Cochran,    27  of  the  same  sale,  against  another,  whether 

Ala.  228.]  a  party  to  the  conversion  or  not.     Buck- 

2  Dufresne  v.  Hutchinson,  3  Taunt,  laud  v.  Johnson,  26  Eng.  Law  &  Eq.  R. 
117.      [Where    two   partners   wrongfully  328.] 

took  certain  property,  and  one  afterwards         "^  Supra,  tit.  Damages,  §  276.    See  also 

settled  with  the  owner  for  one  half  there-  supra,   635   a.     See   further    Countess    of 

of,  the  owner  was  permitted  to  bring  tro-  Rutland's   case,    1  Roll.  Abr.  5.     [In  an 

ver  against  the  other  partner  for  the   re-  action  of  trover  there  can  be  but  one  as- 

maining   half.      McCriUis   v.   Hawes,   38  sessment  of  damages.     If  there  are  sever- 

Maine,  566.]  al  defendants,  and  some  are  defaulted  and 

*  Per  Twisdeu,  J.,  in  Devoe  v.  Corydon,  others  are  found  guilty,  the  judgment  is 

1  Keb.  305.  joint,  and  the  verdict  settles  the  amount  of 

5  Bull.  N.  P.  48 ;  Wingfield  v.  Stratford,  damages  for  all  the  defendants,  as  well 
Sayer,  R.  15,  16  ;  Swayn  v.  Stephens,  those  defaulted  as  those  found  guilty 
Cro.  Car.  245 ;  Granger  v.   George,  5  B.  Gerrish  v.  Cummings,  4  Cush.  392. 

&  C.  150  ;  1  Campb.  558,  per  Ld,  Ellen-  «  Davis  r.  Oswell,  7  C.  &  P.  804;  Moon 

borough;  1  Danv.  Abr.  25.  v.  Raphael,  2  Bing.  N.  C.  310;  Bodlcy  y 

6  1  Tidd's  Pr.  598.  See  Yelv.  174  a,  Reynolds,  10  Jur.  310;  8  Ad.  &  El.  779. 
n.  (1),  by  Mctcalf.  [An  infant  is  liable  in  ^  Alsager  v.  Close,  10  M.  &  W.  576  ; 
trover  for  the  conversion  of  a  chattel  McLeod  v.  M'Ghie,  2  Man.  &  Gr.  326 ; 
which  lie  has  obtained  by  fraud,  and  re-  Mercer  v.  Jones,  3  Campb.  477  ;  [Decker 
fused  to  deliver  on  demand,  —  although  he  v.  Mathews,  2  Kernan  (N.  Y.)  313;  Bal- 
had  sold  it  before  the  demand  was  made  timore  v.  Norman,  4  Md.  352 ;  Keaggy  v. 
upon    him,    and    although    he   had    pre-  Hite,  12  111.  99.] 

vailed,  on  the  plea  of  infancy,  in  an  action  ^^  Bloxam  v.  Hubbard,  5  East,  420  ; 
on  a  promissory  note  given  by  him  for  this  Nelthrope  v.  Dorrington,  2  Lev.  113; 
chattel.     Walker  v.  Davis,  1  Gray,   506.     Wheelwright  ».  Depeyster,  1  Johns.  471. 


668  LAW   OF  EVIDENCE.  [PART  IV 

has  not  been  restored,  the  general  measure  of  damages  is  the  valuG 
of  the  thing  taken,  to  which  the  jury  may,  in  their  discretion,  add 
interest  on  the  value  ;  ^  and  if  the  goods  have  been  fairly  sold  un- 
der authority  of  law,  the  amount  realized  by  the  sale  will  ordina- 
rily be  taken  as  their  true  value.^  But  it  has  been  held  in  Eng- 
land, that  the  jury  are  not  bound  to  find  the  value  at  the  time  of 
the  conversion,  but  they  may  find,  as  damages,  the  value  at  a  sub- 
sequent time,  at  their  discretion.^  In  this  country,  however,  the 
courts  are  inclined  to  adhere  to  the  value  at  the  time  of  the  con- 
version, unless  this  value  has  subsequently  been  enhanced  by  the 
defendant.*  But  if  the  property  has  been  restored  to  the  plaintiff, 
this  will  go  in  mitigation  of  the  damages  ;  and  if  it  has  been  recov- 
ered by  him,  by  the  payment  of  a  reward  or  otherwise,  the  ex- 
pense so  incurred  is  to  be  allowed  to  him  by  the  jury.^  If  he  can 
be  indemnified  by  a  sum  of  money  less  than  the  full  value,  as,  for 
example,  where  he  has  only  a  special  property,  subject  to  which 
the  defendant  is  entitled  to  the  goods,  that  sum  is  the  measure  of 
damages.  But  if  he  is  responsible  over  to  a  third  person,  or  if  the 
defendant  is  not  entitled  to  the  balance  of  tlie  value,  the  plaintiff 
is   entitled  to  recover  the  whole  value.^    Where   the   action  is 

1  Finch  V.  Blount,  7  C.  &  P.  478,  per  the  debtor  for  the  difference  in  value  be- 

Patteson,  J. ;  Johnson  v.  Sunmer,  1  Met.  twecn  such  property  and  the  debt  which 

172;   Mathews  v.  Menedgcr,   2   McLean,  the    conveyance    was    made     to    secure. 

145;      Clark    v.    Whitaker,    19     Conn.  Bartlett  r.  Decreet,  4  Gray,  111,  113.] 

319.  5  Greenfield  Bank  v.  Leavitt.  17  Pick.  1. 

*  Whitmore  v.  Black,  13  M.  &  W.  507.  And  see  Pierce  t'.  Benjamin,  14  Pick. 
If  the  goods  have  been  converted  into  356,  361  ;  Yale  v.  Saunders,  16  Verm.  R. 
money  by  the  defendant,  to  his  own  use,  243.  So,  if  the  goods  have  been  illegally 
this  sum,  with  interest,  will  be  the  lowest  sold,  in  discharge  of  a  lien,  and  bought 
measure  of  damages.  Ewart  v.  Kerr,  2  in  by  the  owner,  who  sues  the  seller  in 
McMullen,  141.  trover.     Hunt  v.  Haskell,  11   Shepl.  309  ; 

3  Greening  v.  Wilkinson,  1  C.  &  P.  625.  [Curtis  v.  Ward,  20  Conn.  204  ;  p]wing 

And  see  Cook  v.  Hartle,  8  C.  &  P.  528  ;  v.  Blount,  20  Ala.  694.     If  the   plaintiff 

Whitchouse  v.  Atkinson,  3  C.  &  P.  344.  admit  that  at  the  time  of  the  conversion 

[*  See  Forsyth  v.  Wells,  41  Penn.  State,  the  defendant  had  a  lien  on  the  goods  for 

291,  where  the  cases  in  regard  to  the  meas-  an  ascertained  amount,  the  amount  of  the 

ure  of  damages  are  cited  and  reviewed.]  lien  is  to  be  deducted,  and  interest  allowed 

*  Supra,  tit.  Damages,  §  276.  [Moody  on  the  balance.  Fowler  v.  Gilman,  13 
V.  Whitney,  38  Maine,  174;   Backmaster  Met.  267.] 

V.   Smith,  22   Vt.  203  ;  Swift  v.  Barnum,  ^  Chamberlain  v.  Shaw,  18  Pick.  278, 

23  Conn.  523 ;    Covell  v.  Hill,  2    Selden  283,  284.     [The  owner  of  a  chattel  trans- 

(N.  Y.)  374;   Ewing  v.  Blount,  20  Ala.  ferred  the    possession  thereof  to  another 

694  ;  Funk  v.  Dillon,  21  Mis.  (6  Benn°,tt)  person,  with  the  agreement  that  it  should 

294;    Salmon  v.  Horwitz,  28   Eng.   Law  become  his  property  on  the  payment  of  a 

&  Eq.  K.  175.     In  an  action  against  the  certain  sum  in  monthly  instalments.    After 

assignee    of  an  insolvent  debtor,  for  the  some  of  the  instalments  Avere  paid,  upon  a 

conversion  by  him  of  property  claimed  by  failure  to  pay  the  remainder,   the  owner 

the  plaintiff  under  a  conveyance  from  the  brought  trover  against  a  third  person  for  a 

debtor,   if  the  jury   find   the  conveyance  conversion  of  the  chattel,  and   the  meas- 

Toid  under  the  insolvent  law,  the  plaintiff  ure  of  damages  was  held  to  be  the  whole 

cannot  recover  the  cash  paid  by  him  to  value  of  the  property  with  interest  from 


PAET  IV.]  TROVER.  569 

against  an  executor  de  son  tort,  proof  that  the  goods  have  been  ap- 
plied in  payment  of  debts  of  the  intestate  is  admissible  to  reduce 
the  damages ;  but  he  cannot  retain  for  his  own  debt ;  nor,  as  it 
seems,  for  moneys  of  his  own  which  he  has  expended  in  payment 
of  other  debts  of  the  intestate,  if  the  goods  still  remain  in  his 
hands.i 

the  time  of  the  conversion.  Angier  v.  ^  Bull.  N.  P.  48 ;  Whitehall  v.  Squire, 
Taunton,  &c.  Co.,  1  Gray,  621.  See  also  Carth.  104;  Mountford  v.  Gibson,  4  East, 
Hyde  v.  Cookson,  21  Barb.  92.]  441,  447. 


570  LAW   OF  EVIDENCE.  [PART  IV. 


WASTE. 

[»  §  650.  Waste  defined.    Remedy  for. 

651.  Common-law  action  of  waste  lies  in  some  States. 

652.  Material  averments  in  plaintiff's  declaration. 

653.  Plea  of  the  general  issue  puts  in  issue  only  the  fact  and  circumstances  ot  the 

waste  done  ;  other  defences  must  be  specially  pleaded. 

654.  Manner  of  pleading  in  an  action  on  the  case  in  the  nature  of  waste  brought  by 

a  landlord  against  his  tenant. 

655.  Special  waste  complained  of  must  be  stated  in  declaration. 

656.  Proof  required  under  the  general  issue.    Law  of  waste  accommodated  to  the 

circumstances  of  the  country.] 

§  650.  Waste  is  "  a  spoil  or  destruction  in  corporeal  heredita- 
ments, to  the  disherison  of  him  that  hath  the  remainder  or  rever- 
sion in  fee  simple  or  fee  tail."  ^  It  includes  every  act  of  lasting 
damage  to  the  freehold  or  inheritance,  and  is  punishable  either 
by  an  action  of  waste  or  by  an  action  on  the  case.  The  former  is 
a  mixed  action,  in  which  the  plaintiff  generally  recovers  possession 
of  the  place  wasted,  which  is  forfeited  by  the  tenant,  together  with 
damages  for  the  injury ;  but  in  the  latter  action,  damages  only 
are  recovered. 

§  651.  The  old  action  of  waste  still  lies  in  some  of  the  United 
States,  the  Statute  of  Gloucester,  6  Edw.  1,  ch.  5,  having  been 
brought  over  and  adopted  in  those  States  as  part  of  the  common 
law ;  2  though  it  is  seldom  resorted  to  ;  but  in  others,  it  has  never 
been  recognized ;  the  only  remedy  being  either  an  action  on  the 
case  or  an  injunction.^ 

§  652.  The  action  of  waste  lies  against  a  tenant  for  life  or  for 
years,  in  favor  of  him  only  who  has  the  next  immediate  estate 
of  inheritance  in  reversion  or  remainder.  The  material  aver- 
ments in  the   declaration,  and  which   the  plaintiff  must  be  pre- 

1  2  Bl.  CDmm.  281  ;  Co.  Lit.  52  b,  53.  Cleaveland,  6  Conn.  R.  329  ;  [Cruise's 
[See  Cruise's  Digest  (GreenleaPs  edition,  Digest  (Greenleaf sedition,  1856), u<sw/wa, 
1856),  vol.  i.  p.   120  (*115),  tit.  iii.  ch.     §  26,  and  note.] 

2,  §§  1  -  76,  and  notes.]  [*  Plaintiff"  must  »  ghult  v.  Baker,  12  S.  &  R.  273 ;  Find- 
have  the  legal  title.  Gillett  v.  Treganza,  lay  v.  Smith,  6  Munf.  134  ;  Bright  v.  Wil- 
13  Wise.  472.]  son,  1    Cam.   &  Norw.   24 ;  Sheppard  v. 

2  Jackson    on    Real  Actions,  p.   340;  Sheppard,  2  Hayw.  382. 
Carver  v.  Miller,  4  Mass.  559;  Randall  v. 


PART  IV.]  WASTE.  571 

pared  to  prove,  are  (1.)  the  title  of  the  plaintiff,  in  stating  which  he 
must  show  how  he  is  entitled  to  the  inheritance  as  fully  and  cor- 
rectly as  in  a  writ  of  entry  on  intrusion,  or  any  other  writ  in  which 
an  estate  for  life  or  years  is  set  forth  in  the  tenant ;  (2.)  the  de- 
mise, if  there  be  one,  or  other  title  of  the  tenant,  but  with  no 
more  particularity  than  is  necessary  in  stating  an  adversary's  title ; 
(3.)  the  quality,  quantity,  and  amount  of  the  waste,  and  the  place 
in  which  it  was  committed,  as,  whether  in  the  whole  premises,  or 
in  a  distinct  part  of  them,  and  whether  it  were  done  sparsim,  as 
by  cutting  trees  in  different  parts  of  a  wood,  or  totally,  as  by  pros- 
trating an  entire  building.  The  averment  of  tenure  may  be  either 
in  the  tenet  "  which  the  said  T.  holds,''^  or  in  the  tenuit,  "  which  he 
held,^'  as  it  has  reference  to  the  time  of  the  waste  done,  and  not  the 
time  of  bringing  the  action.  In  the  former  case  the  plaintiff  will 
recover  the  place  wasted,  namely,  that  part  of  the  premises  in 
which  the  waste  was  exclusively  done,  if  it  were  done  in  a  part  only, 
together  with  treble  damages.  But  in  the  latter  case,  the  tenancy 
being  at  an  end,  he  will  have  judgment  for  his  damages  alone.  If 
the  waste  was  committed  by  an  assignee  of  a  tenant  in  dower  or 
by  the  curtesy,  the  action,  if  brought  by  the  heir  of  the  husband 
or  feme,  must  be  against  the  original  tenant,  the  assignee  being 
regarded  only  as  his  bailiff  or  servant.  But  if  the  reversioner  has 
also  assigned  his  inheritance,  and  the  assignee  of  the  tenant  for 
life  has  attorned,  the  latter  is  considered  as  the  tenant,  and  he 
alone  is  liable  for  waste  done  by  himself.  So,  if  any  lessee  for  life 
or  years  commits  waste,  and  afterwards  assigns  his  whole  estate, 
the  action  of  waste  lies  against  the  original  tenant,  and  the  place 
wasted-  may  be  recovered  from  the  assignee,  though  he  is  not  a 
party  to  the  suit,  the  title  of  his  assignor  having  been  forfeited  pre- 
vious to  the  assignment.  But  if  the  assignee  himself  committed 
the  waste,  he  alone  is  liable  to  the  action.  It  follows,  that  a  gen- 
eral plea  of  non-tenure  is  not  a  good  plea  to  this  action ;  but  tin 
defendant  may  plead  a  special  non-tenure,  as,  for  example,  if  ht 
was  lessee  for  life,  and  not  a  tenant  in  dower  or  by  the  curtesy 
he  may  plead  that  he  assigned  over  all  his  estate,  previous  to 
which  no  waste  was  committed  ;  or,  if  he  was  the  assignee,  he  majf 
plead  the  assignment,  and  that  no  waste  had  subsequently  been 
committed.^ 

1  See  Jackson  on  Real  Actions,  pp.  329  -     also  2  Inst.  301,  302;   2  Saund.  252  a 
337,  where  also  may  be  found  precedents     note  (7),  by  Williams. 
of  the  various  counts  in  this  action.     Sea 


672  LAW   OF  EVIDENCE.  [P ART  IV. 

§  653.  The  pica  usually  termed  the  general  issue^  in  the  action 
of  waste  is,  that  the  defendant  "  did  not  make  any  waste,  sale,  or 
destruction  in  the  messuage  and  premises  aforesaid,  as  the  plain- 
tiff in  his  writ  and  declaration  has  supposed."  This  plea  has  been 
said  to  put  in  issue  the  whole  declaration  ;  ^  but  the  better  opinion 
seems  to  bo,  that  it  puts  in  issue  only  the  fact  and  circumstances 
of  the  waste  done,  to  which  point  alone,  therefore,  is  any  evidence 
admissible.  If  the  defendant  would  contest  the  plaintiff's  title,  or 
would  show  any  matter  in  justification  or  excuse,  such  as,  that  he 
cut  the  timber  for  repairs,  or  the  wood  for  fuel,  or  that  his  lease 
was  without  impeachment  of  waste,  or  that  he  has  subsequently 
repaired  the  damage  prior  to  the  commencement  of  the  action,  or 
tliat  he  did  the  act  by  license  from  the  plaintiff,  or  has  any  other 
like  ground  of  defence,  he  must  plead  it  specially.''^ 

§  654.  In  an  action  on  the  case,  in  the  nature  of  waste,  brought 
by  a  landlord,  whether  lessor,  heir,  or  assignee,  against  his  tenant, 
whether  lessee  or  assignee,  their  respective  titles  are  not  set  out 
with  so  much  precision  as  in  the  action  of  waste,  but  their  relations 
to  eacli  other  are  stated  in  a  more  general  manner,  namely,  that 
the  dofendant  was  possessed  of  the  described  premises  during  the 
period  mentioned,  and  held  and  occupied  them  as  tenant  to  the 
plaintiff,  to  whom  the  reversion  during  the  same  period  belonged, 
under  a  certain  demise  previously  made,  and  for  a  certain  rent 
payable  therefor  to  the  plaintiff.  But  if  the  defendant  is  tenant 
for  life,  and  the  plaintiff  is  remainder-man  or  reversioner,  it  seems 
necessary  to  set  forth  the  quantity  of  the  defendant's  estate  ;  but 
it  is  not  necessary  to  state  the  quantity  of  the  estate  of  the  plain- 
tiff ;  nor  is  it  expedient ;  for  if  he  does  state  it,  and  mistakes  it,  the 
variance  will  be  fatal.^ 

§  G55.  In  both  these  kinds  of  action,  it  seems  necessary  to  state  in 
the  declaration  the  special  waste  conplained  of,  as,  whether  it  were 
voluntary  or  not,  and  whether  in  the  house,  and  in  what  part 
thereof,  or  whether  in  the  fences  or  trees,  and  the  like ;  and  the 
plaintiff  will  not  bo  allowed  to  give  evidence  of  one  kind  of  waste 
under  an  averment  of  another  ;  as,  if  the  defendant  is  cliarged  with 
uncovering  the  roof  of  the  house,  the  plaintiff  will  not  be  permitted 


J.  iiio  u|iiiii>_>ii  \ji    milium    TT  iiiiiiiii?,  ^  -   £,  diiuuKi.   ooo,  mm;    ^•'/|  "j    >v  uiiiiin 

Sanml.  4."58,  note  (5),  founded  on  an  iniiilied     Jackson  on  Real  Actions,  pj).  339,  340. 
admission  of  the  point  in  a  ease  in  2  Liitw.         "2    Sauiid.    252    c,   d,    note    by   W 


1547,  is  shown  to  bo  not  well  ft)un(lcd,  in     liams, 
Jackson  on  RcaJ  Actions,  pp.  338,  339 


PART  IV.]  "WASTE.  573 

to  prove  waste  in  the  removal  of  fixtures  ;  and  if  the  averment  is, 
that  the  defendant  permitted  the  premises  to  be  out  of  repair,  evi- 
dence of  acts  of  vohintary  waste  is  admissible.^  But  it  is  not  ne- 
cessary in  either  form  of  action  for  the  plaintiff  to  prove  the  whole 
waste  stated  ;  nor,  in  an  action  on  the  case,  is  there  any  need  that 
the  jury  should  find  the  particular  circumstances  of  the  waste,  or 
find  for  the  defendant  as  to  so  much  of  the  waste  as  the  plaintiff 
fails  to  prove  ;  for  in  this  action  the  plaintiff  goes  only  for  his  dam- 
ages.^ 

§  656.  Under  the  general  issue  of  not  guilty^  in  the  action  on  the 
case,  the  entire  declaration  being  open,  the  plaintiff  must  prove, 
(1.)  his  title,  and  the  holding  by  the  defendant,  as  alleged ;  (2.) 
the  waste  complained  of;  and  (3.)  the  damages.  But  it  is  to  be 
observed  that  in  the  United  States  the  law  of  waste  is  not  held  pre- 
cisely in  the  same  manner  as  in  England ;  but  it  is  accommodated 
to  the  condition  and  circumstances  of  a  new  country,  still  in  the 
progress  of  settlement.  Therefore,  to  cut  down  trees  is  not  always 
held  to  be  waste  here,  in  every  case  where,  by  the  common  law  of 
England,  it  would  be  so  held  ;  but  regard  is  had  to  the  condition 
of  the  land,  and  to  the  object  of  felling  the  trees,  and  whether  good 
husbandry  required  that  the  land  should  be  cleared  and  reduced 
to  tillage ;  and  generally,  whether  the  tenant  has,  in  the  act  com- 
plained of,  conformed  to  the  known  usage  and  practice  of  tlie  coun- 
try in  similar  cases.^     And  to  what  extent  wood  and  timber  may 

1  Saund.  252  d,  note  by  Williams ;  Edge  waste.      Besides,   an  action   on   the  case 

V.  Pemberton,   12  M.  &    W.   187;    Ante,  will  not  lie  at  law  for  permissive  waste; 

Vol.  1,  §  52.     If  the  waste  is   only  per-  but  in  equity  an  injunction  will  be  yrant- 

missive,  it  seems,  that  an  action  on  the  ed    to  restrain   permissive   waste,  as  well 

case  in  the  nature  of  waste  does  not  lie,  as   voluntary  waste."     Story,  Eq.  Jur.  § 

the  remedy,  if  any,  being  only  in  contract.  917.] 

Countess  of  Penibrokc's  case,  5  Co.  1.3  ;  -  2  Saund.  252  J,  e,  note  bv  Williams. 
Gibson  v.  Wells,  1  New  Rep.  290  ;  Heme  »  Fjndlay  v.  Smith,  6  Munf.  134;  Jack- 
V.  Bembow,  4  Taunt.  764  ;  Jones  v.  Hill,  son  v.  Brownson,  7  Jolms.  227,  233  ;  Park- 
7  Taunt.  392 ;  Martin  v.  Gillam,  7  Ad.  ins  v.  Cox,  2  Ha\-w.  339 ;  Hastings  v. 
&  El.  540.  But  this  action  lies  for  waste  Crunkleton,  3  Yeates,  261.  See  1  Cruise's 
done  by  a  tenant,  holding  over  after  the  Dig.  tit.  3,  Estates  for  Life,  ch.  2  [Green- 
expiration  of  his  lease.  Kinlvside  r.  leafs  edition,  1856),  Vol.  1,  p.  120, 
Thornton,  2  W.  Bl.  1111;  Burchell  v.  [*  115],  §  2,  and  note.]  [*"It  is  appre- 
Hornsby,  1  Campb.  360.  [*"  The  action  hended,  that  a  more  liberal  rule  is  now 
of  waste  is  of  rare  occurrence  in  modern  applied  in  respect  to  constructive  acts  of 
times,  an  action  on  the  case  for  waste  be-  waste  in  England  than  formerly,  and  there 
ing  generally  substituted  in  its  place  certainly  is  a  much  more  liberal  construe- 
whenever  any  remedy  is  sought  at  law.  tion  put  upon  such  acts  in  this  country 
The  remedy  by  will  in  equity  is  so  much  than  that  of  the  common  law.  The  prop- 
more  easy,  expeditious,  and  complete,  er  test  in  all  these  cases  seems  to  be.  Does 
that  it  is  almost  invariably  resorted  to.  the  a^t  essentially  injure  the  inheritance 
By  such  a  bill,  not  only  may  future  waste  as  it  will  come  to  the  reversioner  ?  and 
be  prevented,  but  an  account  may  be  de-  this  is  a  question  for  the  jury."  1  Wash- 
creed   and   compensation   given   for    past  burn  on  Keal  Property,  1 14.1 


574 


LAW   OF  EVIDENCE. 


[part  IV. 


be  felled  without  waste  is  a  question  of  fact  for  the  jury  to  de- 
cide, under  the  direction  of  the  court.^  Under  this  issue,  there- 
fore, it  would  seem  that  the  defendatit  may  show  that  the  act  done 
was  according  to  the  custom  of  the  country,  and  for  the  benefit  of 
the  land,  it  being  virtually  to  show  that  it  was  no  waste  ;  though 
by  the  common  law  of  England,  such  a  defence,  being  matter  in 
justification  or  excuse,  must  be  specially  pleaded.^  But  it  is  no 
defence  to  show  that  the  defendant  was  bound  by  covenant  to  yield 
up  the  premises  in  good  repair  at  the  end  of  the  term,  and  that 
therefore  the  plaintiff  should  resort  to  his  remedy  on  the  covenant ; 
for  he  may  have  remedy  in  either  mode,  at  his  election ;  other- 
wise, he  might  lose  his  recompense  by  being  obliged  to  wait  until 
the  end  of  the  term.^ 


1  Jackson  v.  Brownson,  7  Johns.  227, 
233.  [In  this  country,  no  act  of  a  tenant 
amounts  to  waste,  unless  it  is,  or  may  be, 
prejudicial  to  the  inheritance,  or  to  those 
who  arc  entitled  to  the  reversion  or  re- 
mainder. Pynchon  v.  Stearns,  11  Met. 
304.  See  also  Crockett  v.  Crockett,  2 
Ohio,  N.  S.  180;  McCullough  v.  Irvine, 
13  Penn.  State  R.  438 ;  Clemence  v. 
Steere,  1  Rhode  Isl.  272. J  [*  As  incident 
to  an  estate  for  life,  the  wife  may  rightfully 
take  from  the  land  a  reasonuhle  amount 
of  fuel  for  the  supply  of  herself  and  fam- 
ily, upon  the  farm,  including  the  persons 
employed  to  cultivate  it ;  and  the  fact  that 
such  persons  are  paid  by  a  shai'C  of  the 
crops,  as  tenants  at  the  halves,  and  in  cold 
veather  keep  a  separate  fire,  does  not  of 
itself  prove  an  unreasonable  use.  Smith 
V.  Jewett,  40  N.  H.  530.] 


2  Ibid.  See  Simmons  v.  Norton,  7 
Bing.  640 ;  5  Moore  &  P.  645,  S.  C. 

3  2  Saund.  252  c,  note  by  Williams ; 
Kinlyside  v.  Thornton,  2  W.  Bl.  1111; 
Jefferson  v.  Jefferson,  3  Lev.  130.  [For 
an  unauthorized  removal  of  fixtures,  put 
in  by  a  lessee  under  a  special  agreemcHt 
in  writing  as  to  his  right  to  remove,  and 
the  lessor's  right  to  purchase  them,  the 
lessor's  remedy  is  by  action  on  the  agree- 
ment, and  not  on  the  covenant  against 
waste  in  the  lease.  Where  there  is  a 
special  agreement  between  landlord  and 
tenant  regarding  fixtures,  it  overrules  and 
supersedes  the  general  rules  of  law  regu- 
lating their  mutual  rights  and  obligations. 
Naylor  v.  Collin;*e,  1  Taunt.  19;  Thresher 
V.  East  London  Waterworks,  2  B.  &  C.  608, 
and  4  D.  &  R.  62 ;  Amos  &  Ferard  on  Fixt. 
108, 109 ;  Wall  v.  Hinds,  4  Gray,  256, 273.] 


PABTIV.]  WAY.  57/^ 


WAY. 

\*  §  657.  Private  right  of  way  exists  only  by  grant  or  agreement. 

658.  Right  of  way  of  necessity  is  founded  on  implied  grant.     Owner  of  land  mav 

designate  any  convenient  course  of  such  way. 

659.  659  a.  Proof  of  a  private  way  must  correspond  with  the  description. 

660.  Defences  to  an  action  for  disturbance  of  a  way. 

661.  Plaintiff  may  use  same  defences  in  rebutting  defendant's  plea  of  right  of  way 

in  action  of  trespass. 

662.  Existence  of  a  public  ivay,  how  proved.    Right  of  the  public  rests  upon  the 

use  of  the  land,  with  the  assent  of  the  owner,  for  such  a  length  of  time  that 
the  public  accommodation  and  private  rights  might  be  materially  affected 
by  an  interruption  of  the  enjoyment. 

663.  Dedication  must  be  by,  or  with  the  assent  of,  the  owner  of  the  fee. 

664.  Evidence  of  dedication  rebutted  by  evidence  showing  only  a  license. 

665.  Public  way  not  lost  by  non-user  for  any  length  of  time.    Private  way,  how  lost.J 

§  657.  A  PRIVATE  right  of  way  may  be  said  to  exist  only  by 
grant  or  agreement ;  for  prescription  is  but  a  conclusive  presump- 
tion of  an  original  grant  or  right ;  and  necessity,  such  as  creates  a 
right  of  way,  may  be  regarded  as  a  conclusive  presumption  of  a 
grant  or  a  license.^  The  nature  of  a  prescription,  whether  for  a 
right  of  way  or  other  incorporeal  franchise,  has  already  been  con- 
sidered under  that  title.^ 

§  658.   A  right  of  wai/  of  necessity  is  founded  on  an  implied 

1  Nichols  V.  Luce,  24  Pick.  102 ;  Wool-  ting  him  to  recover  nominal  damages  to 
rych  on  "Ways,  p.  72,  note  (q) ;  Gayetty  vindicate  his  right.  Appleton  v.  Fullerton, 
1-.  Bethuue,  14  Mass.  49,  53.  [Aright  1  Gray,  186, 192, 194;  Atkins  w.  Boardman, 
of  way  carries  with  it  all  rights  to  the  use  2  Met'.  467.  Where  a  grantor  conveys  land 
of  the  soil  properly  incident  to  the  free  bounding  it  on  a  street  or  way,  he  and  his 
exerciseandenjoymentof  the  right  granted  heirs  are  estopped  to  deny  that  there  is 
or  reserved.  The  abutters  on  such  way  such  a  street  or  way.  It  is  an  impli&l 
have  a  right  to  make  improvements  there-  covenant  of  the  existence  of  such  a  way. 
in,  so  as  to  make  it  more  beneficial  to  Parker  v.  Smith,  17  Mass.  413;  O'Linda 
themselves,  without  injury  to  the  owners  r.  Lothrop,  21  Pick.  292  ;  Tufts  v.  Charles- 
of  the  land,  or  others  having  an  equal  town,  2  Gray,  272.  The  grantor  of  land 
right  of  way  ;  but  they  have  not  a  right  to  may  create  a  right  of  way  therein  in  his 
use  it  for  another  and  distinct  purpose,  own  favor,  by  a  reservation  or  exception 
and  it  is  for  the  jury  in  any  given  case  to  thereof  in  the  grant,  either  in  gross,  or  as 
determine  whether  the  use  complained  of  annexed  to  the  land  of  the  grantor.  Bow- 
is  for  another  and  distinct  purpose  than  .  en  v.  Conner,  6  Gush.  132,  Cruise's  Digest 
that  of  a  way.  If  it  be  used  for  such  other  (Greenleaf's  edition,  1856),  tit.  xxiv. 
and  distinct  purpose,  the  owner  of  the  Ways,  Vol.  2,  pp.  25 -35  (*  85-*  91).] 
land  may  have  his  action,  although  he  sus-  ^  Supra,  §§  537  -  546. 
tains  no  actual  damage ;  the  law  permit- 


676  LAW   OF   EVIDENCE.  [PART  IV. 

grant ;  but  convenience  alone  is  not  sufficient  to  raise  the  implica- 
tion of  a  way.^  Where  one  has  a  way  of  necessity  over  another's 
land,  the  party,  while  the  way  remains  undefined,  may  pass  over 
any  part  of  the  land,  in  the  course  least  prejudicial  to  the  owner, 
and  passable  with  reasonable  convenience.  But  it  is  the  right  of 
the  owner  of  the  land  to  designate  the  particular  course  of  such 
way  ;  and  he  is  bound  to  designate  a  convenient  course.  If  he 
neglects  so  to  do,  the  other  party  may  select  the  tract  for  himself.^ 
And  if  the  way  of  necessity  results  from  successive  levies  of  exe- 
cutions upon  the  debtor's  land,  the  land  taken  by  the  creditor, 
whose  levy  creates  the  necessity,  must  be  burdened  with  the  ease- 
ment.^ 

§  659.  The  'proof  of  a  'private  way  must  correspond  with  the 
description,  whether  it  be  in  the  declaration  in  an  action  for  dis- 
turbance of  the  right,  or  in  a  special  plea  in  trespass.  Evidence 
of  user  of  a  right  of  way  for  all  manner  of  carriages  is  not  suffi- 
cient to  support  an  allegation  of  such  right  for  all  manner  of  cat- 
tle, though  it  is  admissible  under  that  issue  ;  nor  does  evidence  of 
a  user  of  a  way  with  horses,  carts,  and  carriages  for  certain  pur- 
poses, necessarily  prove  a  right  of  way  for  all  purposes.*  But  the 
allegation  of  a  footway  is  supported  by  evidence  of  a  carriage- 
way ;  and  the  allegation  of  a  private  way  is  supported  by  evidence 
of  a  public  way  ;  for  in  these  cases  the  latter  includes  the  former.^ 
The  extent  of  the  right  is  a  question  for  the  jury,  under  all  the 
circumstances  proved.  But  a  user  for  all  the  purposes  for  which 
the  party  had  occasion  is  evidence  of  a  general  right  of  way.^ 
The  termini  of  the  way  are  also  material  to  be  proved  as  alleged ; 
for  if  the  proof  stops  short  of  either,  it  is  fatal,  unless  the  plead- 

1  Nichols  V.  Luce,  24  Pick.  102.  And  ranty  does  not  estop  the  grantor  to  claim 
see  Bricc  v.  Randall,  7  Gill  &  J.  349;  a  way  of  necessity  over  the  land  granted. 
[Wissler  v.   Hershey,  23  Penn.  State   R.     Brigham  v.  Smith,  4  Gray,  297.] 

333;  Kimball   v.    Cocheco   R.  R.   Co.,   7  *  Ballard    v.    Dyson,    1    Taunt.    279; 

Foster  (N.  H.)  448;  McTavish  v.  Carroll,  Cowling  v.  Higginson,  4   M.  &  W.  245 

7  Md.  352.     See  also  Hyde  v.  Jamaica,  1  And   see  Brunton    v.   Hall,  1    Ad.  &  El. 

Williams  (Vt.)  4-13.     A  right  of  way  by  792,   N.   S. ;    Higham  v.   Rabett,   3  Jur. 

necessity  can  only  arise  by  grant  express  588  ;  5  Bing.  N.  C.  622,  S.  C. ;  [French 

or  implied;  it  does  not   exist  where  the  v.  Marstin,  4  Foster  (N.  H.)  440.] 

title  of  the  parties  is  by  escheat.     Proctor  ^  Davies  v.  Stephens,  7    C.  &  P.  570, 

V.  Hodgson,  29  Eng.  Law  &  Eq.  453.]  per  Ld.  Denman  ;  Brownlow  v.  Tomlin- 

2  Holmes    v.    Seeley,    19   Wend.    507;  son,  1  Man.  &  Gr.  484. 

Russell  V.  Jackson,  2  Pick.  574 ;  Capers  ^  Cowling   v.    Higginson,  4   M.  &  W. 

V.  Wilson,  3  McCord,  170.  245  ;  Allan  v.  Gomme,  11  Ad.  &  El.  759. 

3  Russell  V.  Jackson,  2  Pick.  574,  578.  See  supra,  §§  544,  545.  If  the  proof  is  of 
And  see  Pernam  v.  Weed,  2  Mass.  203  ;  a  use,  common  to  all  others,  as  well  as  to 
Taylor  v.  Townsend,  8  Mass.  411  ;  Col-  the  party  claiming  the  way,  it  does  not 
lins  ».  Prentice,  15  Conn.  39,  423  ;  Farnam  establish  a  private  way.  Prince  v.  Wil- 
V   Piatt,  8  Pick.  339.     [A   deed  of  war-  bourne,  1  Rich.  58. 


PART  IV.]  WAY.  577 

ings  are  amended.^  But  the  words  "  towards  aud  unto  "  do  not 
necessarily  bind  the  party  to  the  proof  of  a  straight  road  ;  ^  nor  is 
it  a  fatal  variance,  if  it  appear  that  the  way,  in  its  course,  passes 
over  an  intermediate  close  of  the  party  himself  who  claims  it.^ 

§  659  a.  Where  a  private  way  is  claimed  by  virtue  of  a  con- 
veyance of  land,  and  as  appurteiiant  to  the  same,  evidence  aliunde^ 
by  parol  or  otherwise,  may  be  given  to  prove  that  a  particular  way 
was  then  in  use  by  the  grantor ;  in  which  case  it  passed  as  parcel 
of  the  estate  conveyed.* 

§  660.  In  an  action  on  the  case  for  disturbance  of  a  way  or  other 
easement,  the  defendant,  on  a  traverse  of  the  right,  may  show  that 
it  has  ceased  to  exist ;  or,  that,  during  the  period  of  the  supposed 
acquisition  of  a  way  by  user,  the  land  was  in  the  possession  of  a 
tenant  of  the  plaintiff;  or,  that  the  way  was  only  by  sufferance, 
during  his  own  pleasure,  for  which  the  plaintiff  paid  him  a  com- 
pensation, or  submitted  to  the  condition  of  a  gate  across  it ;  ^  Or 
that  the  plaintiff  had  submitted  to  an  obstruction  upon  it  for  more 
than  twenty  years  ;  ^  or,  that  the  right  has  been  extinguished  by 
unity  of  title  and  possession  in  the  same  person  ;'^  or  that  the  right 
is  released  and  gone,  by  reason  of  an  extinction  or  abandonment  of 
the  object  for  which  it  was  granted  ;  as,  if  it  be  a  way  to  a  ware- 
house, and  the  house  is  afterwards  pulled  down,  and  a  dwelling- 
house  is  built  upon  the  place.^  And  if  the  way  is  claimed  by 
necessity,  he  may  show  that  the  plaintiff  can  now  approach  the 
place  by  passing  over  his  own  land.^ 

1  See  ante,  Vol.  1,  §§  58,  62,  63,  71,  72 ;  struction  be  only  for  part  of  the  space 
Wrifrlit  V.  Kattray,  1  East,  377.  over  all  of  which  the  plaintiff  claims  his 

2  Rex  V.  Marchioness  of  Downshire,  4  rijrht  of  way,  it  is  no  answer  to  the  plain- 
Ad.  &  El.  232.  tiff's  right  to  pass  over  the  way  as  re- 

^  Jackson  v.  Shillito,  cited  1  East,  381,  duced  in  width.     Putnam  v.  Bowker,  11 

382.     See  Simpson  v.  Lewthwaite,  3  B.  &  Cush.  .542,  546.] 

Ad.  226.  T  Woolrvch  on  Ways,  pp.  70,  71  ;  On- 

*  Atkins  V.  Boardman,  2  Met.  457,  464  ;  ley  v.  Gardiner,  4  M.  &  W.  496 ;  Thomas 

White  V.  Crawford,  10  xMass.  183  ;  United  v.  Thomas,  2  C.  M.  &  R.  34;  Clayton  v. 

States  V.  Appleton,  1  Siimn.  492,  501,  502  ;  Corby,  2  Ad.  &  El.  813,  N.  S.    [A  ri-ht  of 

Staples   V.   Hayden,   6   Mod.  4;    Kent   v.  way  appurtenant  to  land  over  and  upon 

Waite,    10   Pick.  138.     [A  right  of  way  adjoining  land  is  not  extinguished  by  the 

appurtenant  to  land  passes  by  a  deed  of  vesting  of  both  estates  in  the  same  person 

the  land  without  express  mention  of  such  as  mortgagee,  under   separate  mortgages 

right,  or  of  privileges  and  appurtenances,  until  both  mortgages  are  foreclosed.     Rit- 

Brown  v.  Thissell,  6  Cush.  2.54;  Under-  ger  y.  Parker,  8  Cush.  145.] 

wood  V.  Carney,  1  lb.  285;  Pratt  v.  San-  ^  ^n^jji  ^^  Gomme,  11  Ad.  &  El.  759. 

ger,  4  Gray,  84,  88.]  [The  right  of  passage-way  to  certain  build- 

^  Reignolds  v.  Edwards,  Willes,  E.  282.  mgs  is  extinguished  by  the  laying  out  and 

6  Bower  v.  Hill,  1  Bing.  N.  C.  549,  555,  constructing  a  highway  over  the  site  of 

per  Tindal,  C.  J. ;  Rex  v.  Smith,  4  Esp.  such  buildings.     Hancock  v.  Wentworth, 

109;    [Hewins   v.   Smith,    11    Met.   241;  5  Met.  446.] 

Kilburn  v.  Adams,  7  lb.  33.    If  the  ob-  ^  Holmes  v.  Goring,  2  Bing.  76.    The 

VOL.  II.  37 


678  LAW   OF  EVIDENCE.  [PART  IV. 

§  661.  In  trespass  also,  if  the  defendant  pleads  a  right  of  way, 
which  is  traversed,  the  same  evidence  is  admissible  on  the  part  of 
the  plaintiff,  by  way  of  rebutting  the  defence.  So,  under  this 
issue,  in  any  action,  it  may  be  shown  that  the  way  has  been 
duly  discontinued  or  stopped.^  But  under  a  traverse  of  the  right 
of  way  pleaded,  it  is  not  competent  for  the  plaintiff  to  show  that 
the  trespass  complained  of  was  committed  beyond  the  limits  of 
the  right  alleged ;  for  it  is  irrelevant  to  the  issue,  and  should  be 
shown  either  by  a  replication  of  extra  viani  or  by  a  new  assign- 
ment.^ 

§  662.  The  existence  of  a  public  way  is  proved,  either  by  a  copy 
of  the  record,  or  by  other  documentary  evidence  of  the  original 
laying  out  by  the  proper  authorities,  pursuant  to  statutes  ;  ^  or,  by 
evidence  either  of  immemorial  usage*  or  of  dedication  of  the 
road  to  public  use.  In  the  latter  case,  two  things  are  essential 
to  be  proved  :  the  act  of  dedication^  and  the  acceptance  of  it  on  the 
part  of  the  public ;  and  this  may  be  either  limited  and  partial,  as 
of  a  way  excluding  carriages,  or  it  may  be  absolute  and  total.^ 
Nor  is  it  necessary  that  the  dedication  be  made  specifically,  to  a 
corporate  body  capable  of  taking  by  grant ;  it  may  be  to  the 
general  public,  and  limited  only  by  the  wants  of  the  community.* 
If  p.ccepted  and  used  by  the  public  in  the  manner  intended,  it 
works  an  estoppel  in  pais^  precluding  the  owner,  and  all  claiming 
in  his  right,  from  asserting  any  ownership  inconsistent  with  such 

soundness  of  this  decision  is  questioned  by  out  as  a  public  highway  ;  and  for  this  pur- 
Mr.  Woolrych,  in  his  treatise  on  Ways,  pose  twelve  years  have  been  held  sufficient. 
p.  72,  n. ;  but  the  rule  is  i-ecognized.in  the  Golden  v.  Thurber,  2  Johns.  424.  So  has 
United  States  as  good  law.  McDonald  "  a  considerable  time."  Pritchard  v.  At- 
V.  Lindall,  3  Rawlc,  492  ;  Collins  v.  Pren-  kinson,  3  New  Ilamp.  R.  33.5,  339.  And 
tice,  15  Conn.  R.  39  ;  Smiths.  Higbce,  12  see  The  State  v.  Campton,  2  New  Hamp. 
Verm.  R.  113.  See  3  Cruise's  Dig.  tit.  R.  513;  Sage  v.  Barnes,  9  Johns.  365; 
xxiv.  §  10, note  (Grecnleaf's  ed.  1856).  Drury  v.  Worcester,  21    Pick.  44.     [*A 

1  Davison  v.  Gill,  1  East,  64.  highway  may  be  proved  by  prescription, 

2  Stott    V.    Stott,    16    East,   343,   349.  even  at  or  near  a  place  where  a  way  is 
[See  also  Hewins  v.  Smith,  11  Met.  241.]  proved  by  record  to  have  been  established. 

3  The  question  whether  a  way  is  public  Commonwealth  v.  Old  Colony  R.  R.,  14 
or  private,  where  the  evidence  is  conflict-  Gray,  93.] 

ing,    is    to   be   determined    by   the   jury.  ^  Marq.  of  Stafibrd  v.  Coyney,  7  B.  & 

Deake  v.   Rogers,   3    Hill    (N.   Y.)   Rep.  C.  257  ;  The  State  v.  Trask.  6  Verm.  R. 

604.  355.     [*  The   inference  of  acceptance  by 

*  Commonwealth  v.  Low,  3  Pick.  408  ;  the  public  is  not  negatived  by  the  fact  that 

Stedman  v.  Southbridge,  17    Pick.    162;  the  land  so  used  is  taxed  for  city  and  coun- 

Williams  v.  Cummington,  18  Pick.  312;  ty  purposes.     Lemon  v.  Havden,  13  Wise. 

The  State  v.  Hunter,  5  Ired.  369  ;  Valen-  159  ;  Wyman  v.  State,  lb.  663.] 

tine  V.  Boston,  22  Pick.  75  ;  Reed  v.  North-  ^  New"^  Orleans  v.  The  United  States,  10 

field,   13   Pick.  94;  Odiorne  v.   Wade,  5  Pet.  662;  Bryant  v.  McCandless,  7  Ohio 

Pick.  421;  Young   v.  Garland,  6    Shepl.  R.    (Part   2),    135;    Pawlet   v.    Clark.    9 

409.     Long  use  of  a  way  by  the  public  is  Cranch,  292,  331. 
prima  Jacie  evidence  that  it  was  duJy  laid 


PART  IV.] 


WAY.  579 


use.  Nor  is  it  necessary  to  prove  who  was  the  owner ;  nor,  that 
he  was  a  private  person  ;  for  a  dedication  may  be  presumed,  even 
against  the  sovereign ;  and  in  all  cases ;  unless  the  state  of  the 
property  was  such  that  a  dedication  of  the  soil  was  impossible.^ 
The  right  of  the  public  does  not  rest  upon  a  grant  by  deed,  nor 
upon  a  twenty  years'  possession ;  but  upon  the  use  of  the  land, 
with  the  assent  of  the  owner,  for  such  a  length  of  time  that  the 
public  accommodation  and  private  rights  might  be  materially  af 
fected  by  an  interruption  of  the  enjoyment.^  The  issue  is  there- 
fore a  mixed  question  of  law  and  fact,  to  be  found  by  the  jury, 
under  the  direction  of  the  court,  upon  consideration  of  all  the 
circumstances.  The  length  of  the  time  of  enjoyment  furnishes 
no  rule  of  law  on  the  subject  which  the  court  can  pronounce 
without  the  aid  of  a  jury,  unless,  perhaps,  where  it  amounts  to 
twenty  years ;  but  it  is  a  fact  for  the  jury  to  consider,  as  tend- 
ing to  prove  an  actual  dedication,  and  an  acceptance  by  the  pub- 
lic.3  Hence  the  jury  have  been  held  justified  in  finding  a  dedi- 
cation after  "  four  or  five  years "  of  enjoyment.*  In  another 
great  case  which  was  much  contested,  six  years  were  held  suffi- 
cient ;  5  and  in  others  it  has  been  held  that,  after  a  user  of "  a 
very  few  years,"  without  prohibition,  or  any  visible  sign  that  the 
owner  meant  to  preserve  his  rights,  the  public  title  was  complete.^ 

1  Reg.  V.  East  Mark,  12  Jur.  332.  In  ize  the  inference  of  a  dedication.  See 
this  case  the  way  had  been  used  fifty  years  ;  U  Shepl.  554,  S.  C. ;  [Curtis  v.  Angier, 
which  was  said  to  be  "extremely  strong  4  Gray,  547.]  ^^  ^  „  Ttr-  n.m 
evidence  of  an  intention  of  the  owner  of  »  [*  Connehan  v.  Ford,  9  Wise.  240.J 
the  soil,  whoever  he  was,  to  dedicate  it  to  In  the  case  of  a  public  way  by  user,  the 
the  public,  unless  there  was  conclusive  jury  may  be  authorized  by  the  circum- 
proof  that  he  had  not  consented."  Per  stances  to  find  that  its  limits  extended 
Erie  J.  [*  See  Martin  v.  People,  23  Dl.  beyond  the  travelled  path,  to  the  breadth 
335  ;'  Kellogg  v.  Northampton,  8  Grav,  usually  laid  out  as  a  highway.  Sprague 
504.  Twenty  years'  uninterrupted  use  of  v.  Waite,  17  Pick.  309  ;  Hannum  v.  Bel- 
a  road  is  competent  evidence  of  a  highway  chertown,  19  Pick.  311. 

leo-allv  established.     Campton's  Petition,  *  Jarvis  v.  Dean,  3  Bing.  447  ;  Poole  v. 

41" N.'^H.  197.]  Huskinson,  11  M.  &  W.  830.     See  Best 

2  Cincinnati  ».  White,  6  Peters,  R.  431,  on  Presumptions,  pp.  133,  134,  §  101. 
437-440;  Reg.  v.  East  Mark,  12  Jur.  ^  Per  Ld.  Kenyon,  in  11  East,  376,  n. 
332  •  The  State  v.  Catlin,  3  Verm.  R.  230 ;  Eight  years  were  held  sufficient  by  Ld, 
Jarvis  v.  Dean,  3  Bing.  447  ;  Brown  v.  Kenyon  in  Rugby  Charity  v.  Merryweath- 
Manning,  6  Ohio  R.  298,  303;  LeClerq  er,  11  East,  375,  n. ;  but  both  these  cases 
V.  Gallipolis,  7  Ohio  R.  217,  219  ;  Lade  v.  were  questioned  by  Mansfield.  C.  J.,  m  5 
Shepherd,  2  Stra.  1004  ;  Pawlet  v.  Clark  T^aunt.  142,  though  Chambre,  J.,  was  of 
9  Cranch,  331  ;  Olcott  v.  BanfiU,  4  N.  Ld.  Kenyon's  opinion.  Id.  1837.  bee 
Hamp.  537,  545,  546  ;  Abbott  v.  Mills,  3  also  5  B.  &  Aid.  457,  per  Holroyd  J. ; 
Verni  R.  519.  In  Dwinel  v.  Barnard,  2  Rex  v.  Hudson,  2  Stra.  909;  Hobbs  v. 
Law  Rep.  339,  344,  N.  S.,  it  was  held  by  Lowell,  19  Pick.  405.  "Six  or  seven 
the  Supreme  Judicial  Court  of  Mame,  that  years  "  were  recognized  as  sufficient  in 
thouo-h  it  must  appear  that  the  owner  of  Barclav  v.  Howell,  6  Peters,  K.  498,  513. 
the  land  designedlv  offered  it  for  public  or  But  see  The  State  v.  Marble,  4  Ired.  318. 
common  use,  yet  the  law  does  not  require  ^  British  Museum  v.  Finnis,  5  L.  &  i*. 
the  lapse  of  any  particular  time  to  author-  460 ;  Rex  v.  Lloyd,  1   Campb.  260.     be« 


580"  LAW   OF  EVIDENCE.  [PART  IV. 

It  is  a  question  of  intention,  and  therefore  may  be  proved  or  dis- 
proved by  the  acts  of  the  owner,  and  the  circumstances  under 
which  the  use  has  been  permitted.*  It  does  not  follow,  however, 
that,  because  there  is  a  dedication  of  a  public  way  by  the  owner 
of  the  soil,  and  the  public  use  it,  the  town  or  parish  or  county  is 
therefore  bound  to  repair.  To  bind  the  corporate  body  to  this 
extent,  it  is  said,  that  there  must  be  some  evidence  of  acquiescence 
or  adoption  by  the  corporation  itself;  such  as,  having  actually 
repaired  it,  or  erected  lights  or  guide-posts  thereon,  or  having 
assigned  it  to  the  proper  surveyor  of  highways  for  his  supervision, 
or  the  like. 2 

§  663.  The  dedication,  however,  must  have  been  made  by  the 
owner  of  the  fee,  or,  at  least,  with  his  assent.  The  act  of  the  ten- 
ant will  not  bind  the  landlord  ;  though  after  a  long  lapse  of  time, 
and  a  frequent  change  of  tenants,  the  knowledge  and  assent  and 
concurrence  of  the  landlord  may  be  presumed  from  the  notorious 
and  uninterrupted  use  of  the  way  by  the  public.^ 

§  664.  The  evidence  of  dedication  of  a  way  may  be  rebutted 
by  proof  of  any  acts  on  the  part  of  the  owner  of  the  soil 
showing  that  he  only  intended  to  give  license  to  pass  over  his 
land,  and  not  to  dedicate  a  right  of  way  to  the  public.  Among 
acts  of  this  kind  may  be  reckoned  putting  up  a  bar,  though  it  be 
for  only  one  day  in  a   year,  or  exlcuding  persons  from  passing 

also  Best  on  Presumptions,  pp.  133  -  137,  ^  jjgx  v.  Benedict,  4  B.  &  Aid.  447,  per 
§§  101,  102  ;  Lade  v.  Shepherd,  2  Stra.  Bayley,  J.  But  see  Rex  v.  Leake,  5  B.  & 
1004;  Commonwealth  v.  McDonald,  16  Ad.  469  ;  Hobbs  i;.  Lowell,  19  Pick.  410. 
S.  &  R.  392;  Hobbs  v.  Lowell,  19  Pick.  See  also  Todd  v.  Rome,  2  Greenl.  55; 
405;  Springfield  v.  Hampden,  10  Pick.  Estes  v.  Troy,  5  Greenl.  368;  Rowell  v. 
59;  Cleveland  v.  Cleveland,  12  Wend.  Montville,  4  Greenl.  270;  Moore  u.  Corn- 
172;  Denning  v.  Roome,  6  Wend.  651.  ville,  1  Shepl.  293;  The  State  v.  Camp- 
f*See  Gwvnn  v.  Homan,  15  Ind.  201;  ton,  2  N.  Hamp.  513  ;  [Hemphill  v.  Boston, 
Boyer  v.  State,  16  Ind.  451  ;  Green  v.  8  Cush.  195  ;  Bowers  v.  Suffolk  Man.  Co., 
Canaan,  29  Conn.  157.]  4  lb.  332,  340;  Wright  v.  Tukey,  3  lb. 
1  Barraclough  v.  Johnson,  8  Ad.  &  El.  290  ;  Oswego  v.  Oswego  Canal  Co.,  2  Sel- 
99;  Woodyer  v.  Hadden,  5  Taunt.  125;  den  (N.  Y.)  257;  Commonwealth  v.  Cole, 
Rex  V.  Wright,  3  B.  &  Ad.  681  ;  Surrey  26  Penn.  State  R.  187  ;  State  v.  Carver,  5 
Canal  Co.  v.  Hall,  1  Man.  &  Gr.  392  ;  Rex  Strobh.  217.  And  where  the  way  is  given 
V.  Benedict,  4  B.  &  Aid.  447  ;  Hannum  v.  for  a  special  and  limited  use  and  purpose, 
Belchertown,  19  Pick.  311;  Sprague  v.  as  for  a  footway,  it  must  be  accepted  and 
Waite,  17  Pick.  309  ;  Wright  v.  Tukey,  3  held  for  that  purpose  only,  or  it  must  fail 
Cush.  290;  [Boston  v.  Lecraw,  17  How.  together,  and  then  no  public  right  is  es- 
U.  S.  426  ;  Hoole  v.  Attorney-General,  22  tablished  by  the  gift.  Hemphill  v.  Bos- 
Ala.    190;    Lamed   v.    Lamed,    11    Met.  ton,  ut  supra.] 

421 ;  Bigelow  v.  Hillman,  37  Maine,  52;  ^  Baxter  v.  Taylor,  1  Nev.  &  Man.  13; 

State   V.   Nudd,   3   Foster    (N.    H.)   327  ;  Wood  v.  Veal,  5  B.  &  Aid.  454  ;  Rex  v. 

Gould  V.   Glass,   19   Barb.  (N.  Y.)    179;  Bliss,  7  Ad.  &  El.  550;  Davies  y.  Stephens, 

Smith  V.   State,  3  Zabr.  130;  Stacey   v.  7  C.  &  P.   570;  Rex  v.   Barr,  4  Campb. 

Miller,  14  Mis.  478 ;  Regina  v.  Petrie,  30  16;    Harper  v.  Charlesworth,  4  B.  &  C. 

Eng.  Law  &  Eq.  207  ;    Kelley's  case,   8  574.        , 
Gratt.  632.] 


PART  IV  J  WAY.  581 

through  it  by  positive  prohibition.^  But  the  erection  of  a  gate  is 
not  conclusive  evidence  of  a  prohibition,  since  it  may  have  been  an 
original  qualification  of  the  grant.^ 

§  6Q5.  In  the  case  of  a  public  wai/,  no  length  of  time,  during 
which  it  may  not  have  been  used,  will  operate  of  itself  to  prevent 
the  public  from  resuming  the  right,  if  they  think  proper.^  But  in 
regard  to  private  easements,  though  generally  they  are  not  lost  by 
non-user  for  twenty  years,  unless  the  right  as  well  as  the  posses- 
sion is  interrupted,*  yet  in  the  case  of  o.  private  wai/,  or  other 
intermittent  easement,  it  is  said,  that,  though  slight  intermittence 
of  the  user,  or  slight  alterations  in  the  mode  of  enjoyment,  will 
not  be  sufficient  to  destroy  the  right,  when  circumstances  do  not 
show  any  intention  of  relinquishing  it,  yet  a  much  shorter  period 
than  twenty  years,  when  it  is  accompanied  by  circumstances,  such 
as  disclaimer,  or  other  evidence  of  intention  to  abandon  the  right, 
will  be  sufficient  to  justify  the  jury  in  finding  an  extinguish- 
ment.5 

1  Best  on  Presumptions,  p.  134,  §  101  *  Supra,  tit.  Prescription,  §  545  ; 
Rex?;.  Lloyd,  1  Campb.  260;  Roberts  v.  Emerson  v.  "Wiley,  10  Pick.  310,  316; 
Karr,  Id.  261,  n. ;  British  Museum  v  Yelv.  142,  note  ( I )  bv  Metcalf ;  Whiter. 
Finnis,  5  C.  &  P.  465,  per  Patteson,  J.  Crawford,  10  Mass.  1*83,  189.     [*Bannon 

2  Davies  y.  Stephens,  C.  &  P.  570.    But  u.  Angrier,  2  Allen,  128.] 

see  Commonwealth  v.  Newbury,  2  Pick.  ^  Gale  &  Whatley  on   Easements,  pp. 

57.  381,382;  Norbury  y.  Meade  e^  a/.,  3  Bligh, 

8  Per  Gibbs,  J.,  in  Rex  v.  St.  James,  2  241  ;   Harmer  v.  Rogers,   3   Bligh,  N.  S. 

Selw.  N.  P.  1334  (10th  edit.);  Vooght  v.  447;  Best  on  Presumptions,  pp.  137,  140, 

Winch,  2  B.  &  Aid.  667,  per  Abbott,   C.  §§  104,  106;  Doe  v.  Hilder,  2  B.  &  Aid. 

J. ;  Best  on  Presumptions,  p.  137,  §  103.  791,  per  Abbott,  C.  J.;  Hoffman  v.  Sav- 

But  see  Commissioners  v.  Taylor,  2  Bay,  age,  15  Mass.  130,  132. 
S86. 


582  LAW   OF  EVIDENCE.  [PART  IV 


WILLS. 

[*  §  666.  Great  diversity  in  the  modes  of  proof  of  wills.    The  several  United  Statef 
have  generally  adopted  the  statute  of  frauds. 

667.  Object  of  this  chapter. 

668.  A  will  of  personalty  is  governed  by  the  law  of  the  testator's  domicile  at  the 

time  of  his  decease. 

669.  Same  evidence  admitted  to  establish  wills  of  personalty  as  would  establish 

them  in  testator's  domicile. 

670.  Will  of  real  property  governed  by  law  of  place  where  property  is  situated. 

671.  Interpretation  of  wills  governed  by  law  of  testator's  domicile,  as  it  was  at 

time  when  will  was  made. 
672   Effect  of  probate  of  will  depends  on  jurisdiction  of  court  where  proved,  and 
nature  of  proceedings.     When  conclusive. 

673.  Highest  degree  of  solemnity  required  in  execution  of  will  of  real  estate  by 

statute  of  frauds. 

674.  What  is  required  to  constitute  signature  of  testator. 

675.  What  constitutes  sufficient  publication. 

676.  Not  necessary  that  witnesses  should  actually  see  testator  sign. 

677.  Requisite  attestation. 

678.  Witnesses  must  subscribe  their  names  in  presence  of  testator. 

679.  Regular  execution  of  will  presumed  after  lapse  of  thirty  years  with  possession 

of  the  estate  according  to  the  tenor  of  the  will. 

680.  Will  thus  proved  to  have  been  made  presumed  to  have  existed  until  death  of 

testator.     This  presumption  how  rebutted. 

681.  Revocation  how  made.    Presumptions  in  regard  thereto. 

682.  Revocation  presumed  from  destruction  of  one  part  of  duplicate  will. 

683.  Effect  of  revocation  of  latter  of  two  inconsistent  wills  to  be  determined  by  cir- 

cumstances. 

684.  685.  Implied  revocations  are  founded  on  presumed  change  of  mind  from  cir- 

cumstances since  making  of  will ;  circumstances  warranting  presumption  of 
revocation. 

686.  Revocation  is  implied  from  alteration  of  the  estate  of  the  devisor. 

687.  A  void  conveyance  sometimes  a  revocation  of  a  devise. 

688.  Evidence  rebutting  formal  proof  of  will. 

688  a.  Loot  will  admitted  to  probate  upon  secondary  evidence. 

689.  Burden  of  proving  unsoundness  or  imbecility  of  mind  in  testator  is  upon  party 

impeaching  will. 

690.  In  proof  of  insanity,  evidence  of  insanity  immediately  before  or  after  the  act  is 

admissible. 
69L  Attesting  witnesses  must  be  competent  at  time  of  attestation ;  may  give  their 

opinions  as  to  testator's  capacity. 
692.  Any  person  interested  in  the  will  may  demand  all  the  foregoing  requisite-s  ol 

proof. 


PART  IV.]  WILLS.  583 

693.  In  an  issue  of  title  to  lands  in  those  States  where  probate  is  not  conclusive 

original  will  must  be  produced. 

694.  Ordinarily  suflScient  to  call  one  of  the  witnesses  in  courts  of  common  law. 

Otherwise  in  equity. 

695.  Competency  of  witnesses.] 

§  QQQ.  In  order  to  ascertain  the  quantity  and  kind  ot  proof  ne- 
cessary to  establish  a  will,  regard  is  to  be  had  either  to  the  law  of 
the  domicile  of  the  testator  or  to  the  law  of  the  country  where  the 
property  is  situated,  and  sometimes  to  both.  The  mode  of  proof  is 
also  affected  by  the  nature  of  the  proceedings  under  which  it  is  of- 
fered. In  some  cases  it  is  necessary  to  prove  the  concurrence  of 
all  the  circumstances  essential  to  a  valid  will,  by  producing  all  the 
subscribing  witnesses,  after  due  notice  to  the  parties  in  interest ; 
while,  in  others,  it  is  sufficient  for  the  occasion  to  prove  it  by  a 
single  witness.  There  is  also  a  diversity  in  the  effect  of  these  dif- 
ferent modes  of  proof;  the  one  being  in  certain  cases  conclusive, 
and  the  other  not.  There  is,  moreover,  a  diversity  of  rule,  arising 
from  the  nature  of  the  property  given  by  the  will ;  a  few  States  still 
recognizing  the  distinction  between  a  will  of  personalty,  at  common 
law,  and  a  devise  of  lands  under  the  statute  of  frauds,  in  regard  to 
the  formalities  of  their  execution  ;  and  others  having  by  statute 
established  one  uniform  rule  in  all  cases.  These  varieties  of  law 
and  practice  create  great  embarrassments  in  the  attempt  to  state 
any  general  rules  on  the  subject.  But  still  it  will  be  found  that, 
on  the  question  as  to  what  law  shall  govern,  in  the  requisites  of  a 
valid  will,  there  is  great  uniformity  of  opinion  ;  and  that  the  sev- 
eral United  States,  in  their  legislation  respecting  wills,  have  gener- 
ally adopted  the  provisions  of  the  statute  of  29  Car.  2,  ch.  3,  com- 
monly called  the  statute  of  frauds. 

§  667.  It  will  therefore  be  attempted,  first  to  consider  by  what 
law  wills  are  governed,  and  then  to  state  the  formalities  generally 
required  in  the  execution  of  wills,  noting  some  local  exceptions  as 
we  proceed.  Thus  it  will  be  seen  to  what  extent  the  evidence 
must  be  carried,  in  the  complete  and  formal  proof  of  any  ^ill. 

§  668.  (1.)  As  to  what  law  is  to  govern  the  formalities  of  a  will, 
a  distinction  is  to  be  observed  between  a  will  of  personalty  or 
movables  and  a  will  of  immovable  or  real  property.  In  regard  to 
a  will  of  personal  or  movable  property,  the  doctrine  is  now  fully  es- 
tablished, that  the  law  of  the  actual  domicile  of  the  testator  is  to 
govern  ;  and  if  the  will  is  void  by  that  law,  it  is  a  nullity  every- 


684  LAW   OF  EVIDENCE.  [PART  IV. 

where,  though  executed  with  the  formalities  required  by  the  law 
of  the  place  where  the  personal  property  is  locally  situated.  There 
is  no  difference,  in  this  respect,  between  cases  of  succession  by  tes- 
tament, and  by  intestacy,  both  being  alike  governed  by  the  rule 
Mohilia  'personam  sequuntur}  And  if,  after  making  a  valid  will, 
the  testator  changes  his  domicile  to  a  place  by  whose  laws  the  will 
thus  made  is  not  valid,  and  there  dies,  his  will  cannot  be  estab- 
lished ;  but  if,  still  surviving,  he  should  return  to  and  use  his  for- 
mer domicile,  or  should  remove  to  another  place  having  similar 
laws,  the  original  validity  of  his  will  or  testament  will  be  revived.^ 
It  results,  that  a  will  of  personalty  may  be  admitted  to  probate,  if 
it  is  valid  by  the  law  of  the  testator's  last  domicile  at  the  time  of 
his  decease,  though  it  is  not  valid  by  the  law  of  the  place  of  the 
probate.^ 

§  669.  From  this  rule  it  would  seem  to  follow,  almost  as  a  mat- 
ter of  necessity,  that  the  same  evidence  must  be  admitted  to  estab- 
lish the  validity  and  authenticity  of  wills  of  movables,  made  abroad, 
as  would  establish  them  in  the  domicile  of  the  testator  ;  for  other- 
wise the  general  rule  above  stated  might  be  sapped  to  its  very 
foundation,  if  the  law  of  evidence  in  any  country,  where  the  mova- 
ble property  was  situate,  was  not  precisely  the  same  as  in  the  place 
of  the  testator's  domicile.  And  tlierefore  parol  evidence  has  been 
admitted  in  courts  of  common  law,  to  prove  the  manner  in  which 
a  will  is  made  and  proved  in  the  place  of  the  testator's  domicile,  in 
order  to  lay  a  sviitable  foundation  to  establish  the  will  elsewhere. 

1  Story,  Confl.  Laws,  §§  467,  468,  469 ;  &  Fin.  544,  .574.  The  rule  that  a  devise 
Stanley  v.  Barnes,  3  Hagg.  Eccl.  R.  .37.3  ;  of  lands  must  be  executed  in  the  form  re- 
Dessebats  v.  Barquier,  1  Binn.  336 ;  Crof-  quired  by  the  law  of  the  place  where  the 
ton  V.  Ilsley,  4  Greenl.  134  ;  Vattel,  b.  2,  lands  lie,  though  a  general  rule  of  law,  has 
ch.  8,  §§  110,  111;  4  Kent,  Comm.  513;  been  expressly  enacted  in  the  statutes  of 
1  Jarman  on  Wills,  pp.  2-6,  and  notes  by  Maine,  New  Hampshire,  Delaware,  Rhode 
Perkins  ;  De  Zichy  Ferraris  v.  Marq.  of  Island,  Indiana,  and  Missouri.  In  several 
Hertford,  3  Curt.  468.  [An  Englishman,  other  States  a  contrary  rule  is  adopted,  by 
residing  in  Spain,  directed  his  wife  to  which  lands  in  those  States  may  pass  by  a 
make  his  will  after  his  decease,  such  a  will  will,  made  in  a  foreign  state,  in  the  form 
being  valid  by  the  law  of  Spain ;  and  a  required  by  the  law  of  the  place  where  it 
will  so  made  by  the  wife,  in  pursuance  of  was  made.  But  to  have  this  effect,  the 
such  directions,  was  held  valid  in  England,  foreign  will  must  have  been  first  proved 
In  re  Osborne,  33  Eng.  Law  &  Eq.  625.]  abroad,  and  then  be  admitted  by  a  certified 

2  Story,  Confl.  Laws,  §  473  ;  4  Burge  copy,  to  be  filed  and  registered  in  the 
on  Colon",  and  For.  Law,  pp.  580,  591.  State  where  the  lands   lie.     Such   is   the 

3  In  re  De  Vaer  Meraver,  1  Hagg.  Eccl.  rule,  as  expressly  enacted,  in  Massnchmdts, 
R.  498.  Vermont,  Florida,  Michigan,  Illinois,  Louis- 

*  Story,  Confl.  Laws,  §  636 ;  De  Sobry  iana,  and  Arkansas.     Whether  such  is  the 

V.  De  Laistre,  2  Har.  &  Johns.  191,  195;  legitimate   effect  of  the  rule  adopted   in 

Clark  V.  Cochran,  3  Martin,  R.  353,  361,  other   States,  as   in    Virginia    Ohio,  New 

862.     And  see  Wilcox  v.  Hunt,  13  Peters,  Jersey,    Kentucky,     Tennessee,    Mississippi, 

R.  378,  379  ;  Don    ;.  Lippmann,  5  CI.  &  and  Alabama,  where  a  copy  of  the  foreign 

Fill.  15,  17;   Yates  v.  Thompson,  3   CI.  will,  being  duly  proved  abroad,  may  be 


PART  IV.]  WILLS.  585 

§  670.  But  in  regard  to  wills  of  immovable  or  real  properti/,  it  is 
equally  well  established,  that  the  law  of  the  place  where  the  prop- 
erty is  locally  situated  is  to  govern,  as  to  the  capacity  or  inca- 
pacity of  the  testator,  the  extent  of  his  power  to  dispose  of  the  prop- 
erty, and  the  forms  and  solemnities  to  give  the  will  its  due  attes- 
tation and  effect.^ 

§  671.  In  the  interpretation  of  wills,  whether  of  movable  or  im- 
movable property,  where  the  object  is  merely  to  ascertain  the 
meaning  and  intent  of  the  testator,  if  the  will  is  made  at  the  place 
of  his  domicile,  the  general  rule  of  the  common  law  is,  that  it  is  to 
be  interpreted  by  the  law  of  that  place  at  the  time  when  the  will 
was  made.  Thus,  for  example,  if  the  question  be,  whether  the 
terms  of  a  foreign  will  include  the  "  real  estate"  of  the  testator,  or 
what  he  intended  to  give  under  those  words ;  or  whether  he  in- 
tended that  the  legatee  should  take  an  estate  in  fee  or  for  life 
only  ;  or  who  are  the  proper  persons  to  take,  under  the  words 
"  heirs  at  law,"  or  other  designatio personarum,  recourse  is  to  be  had 
to  the  law  of  the  place  where  the  will  was  made  and  the  testator 
domiciled.^  And  if  the  will  is  made  in  the  place  of  his  actual 
domicile,  but  he  is  in  fact  a  native  of  another  country  ;  or  if  it  is 
made  in  his  native  country,  but  in  fact  his  actual  domicile  at  the 
time  is  in  another  country  ;  still,  it  is  to  be  interpreted  by  refer- 
ence to  the  law  of  the  place  of  his  actual  domicile.^  The  question 
whether,  if  the  testator  makes  his  will  in  one  place,  where  he  is 
domiciled,  and  afterwards  acquires  a  new  domicile  in  another 
country,  where  he  dies,  the  rule  of  interpretation  is  changed  by 
his  removal,  so  that  if  the  terms  have  a  different  meaning  in  the 
two  countries,  the  law  of  the  new  domicile  shall  prevail,  or  whether 

allowed  in  the  Court  of  Probate,  and  ad-  ch.  120,  §§  29-33;  N.   Jersey  Eev.    St. 

mitted  to  be  recorded,  9 ucere.     See  Dublin  1846,   tit    10,   ch.  9,  §  2 ;  Ky.    Rev.    St 

V.  Chadbourn,  16  Mass.  433;  [Parker  v.  1834,    Vol.    2,   p.    1548;  Tenn.    Rev.   St. 

Parker,  11   Cush.  519] ;  Bailey  v.  Bailey,  1836,  p.  593  ;  Missi.  Rev.  St  1840,  ch.  36, 

8  Ohio,  239;  Mease   v.   Keefe,   10  Ohio,  §§  13,  14;  Ala.  Tuolm.  Dig.  p.  885.     See 

362;  1  Jarm.  on  Wills,  pp.  1,  2,  note  by  6  Cruise's  Dij,'.  tit  38,  ch.  5,  §  69,  note 

Perkius;    Maine   Rev.   St  1840,  ch.  107,  (Greenleafs  ed.  1857). 
§  20;  Mass.  Stat  1843,  ch.  92;  [Bayley         i  Story,  Confl.  Laws,  §  474,  and  author- 

V.  Bayley,  5  Cush.  245] ;  N.  Hamp.  Rev.  ities  there  cited  ;  4  Burge  on  Colon.  &  For. 

StiU.  1842,  ch.  157,  §  13  ;  R.  Island  Rev.  Law,  pp.   217,  218;  1  Jarman  on  Wills, 

Stat  1844,  p.  237;  Verm.  Rev.  St  1839,  pp.  1,  2,  and  notes  by  Perkins;  4  Kent, 

ch.  45,  §  24;  Del.  Rev.  St  1829,  p.  557  ;  Comm.  513. 

Ind.  Rev.  St  1843,  ch.  30,  §  51  ;  Missouri         2  Storv,  Confl.  Laws,  §  479,  a,  b,  c,  e,  k, 

Rev.    St    1845,    ch.    185,    §35;     Flor.  m ;  Harrison  y.  Kixon,  9  Peters,  R.  483. 
Thomps.   Dig.   p.    194 ;    Mich.    Rev.    St         3  Storv,  Confl.  Laws,  §  479/;  4  Burge 

1846,   ch.    68,   §§   21-24;    Illinois    Rev.  on   Colon.   &  For.   Law,  590,  591;  An- 

Stat.  1839,  p.  688  ;  Louis.  Civ.  Code,  art.  struther  v.  Chalmer,  2  Sim.   R.  1  ;  Ante, 

1589;  Ark.  Rev.  St  1837,  ch.  157,  §36;  Vol.   1,  §§  282,  287-292;  1  Jarman  on 

Tate's  Dig.  p.  900;  Ohio  Rev.  St  1841,  Wilis,  pp.  5-8. 


686  LAW   OF  EVIDENCE.  [PART  IV. 

the  interpretation  shall  remain  as  it  stood  by  the  law  of  the  domi- 
cile where  the  will  was  made,  is  a  question  which  does  not  seem 
yet  to  have  undergone  any  absolute  and  positive  decision  in  the 
courts  acting  under  the  common  law.^ 

§  672.  In  determining  the  effect  of  the  probate  of  wills,  regard  is 
to  be  had  to  the  jurisdiction  of  the  court  where  the  will  is  proved, 
and  to  the  nature  of  the  proceedings.  For,  as  we  have  heretofore 
seen,  it  is  only  the  judgments  of  courts  of  exclusive  jurisdiction, 
directly  upon  the  point  in  question,  that  are  conclusive  every- 
where, and  upon  all  persons.^  In  England,  the  Ecclesiastical 
courts  have  no  jurisdiction  whatsoever  over  wills,  except  those  of 
personal  estate  ;  and  hence  the  probate  of  wills,  by  the  sentence  or 
decree  of  those  courts,  is  wholly  inoperative  and  void,  except  as  to 
personal  estate  ;  being,  as  to  the  realty,  not  even  evidence  of  the 
execution  of  the  will.  The  validity  of  wills  of  real  estate  is  there 
cognizable  only  in  the  courts  of  common  law,  and  in  the  ordinary 
forms  of  suits  ;  and  the  verdict  and  judgment  are  conclusive  only 
upon  the  parties  and  privies,  as  in  other  cases.  But  as  far  as  the 
personal  estate  is  concerned,  the  sentence  or  decree  of  tlie  proper 
Ecclesiastical  court,  as  to  the  validity  or  invalidity  of  the  will,  is 
final  and  conclusive  upon  all  persons,  because  it  is  in  the  nature 
of  proceedings  in  rem,  in  which  all  persons  may  appear  and  be 
heard  upon  the  question,  and  it  is  the  judgment  of  a  court  of  com- 
petent jurisdiction  directly  upon  the  subject-matter  in  controver- 
sy.^ But  in  many  of  the  United  States,  courts  are  constituted  by 
statute,  under  the  title  of  courts  of  Probate,  Orphans'  courts,  or  other 
names,  with  general  power  to  take  the  probate  of  wills,  no  distinc- 
tion being  expressly  mentioned  between  wills  of  personalty  and 
wills  of  real  estate ;  and  where  such  power  is  conferred  in  general 
terms,  it  is  understood  to  give  to  those  courts  complete  jurisdiction 
over  the  probate  of  wills  as  well  of  real  as  of  personal  estate,  and 
therefore  to  render  their  decrees  conclusive  upon  all  persons,  and 
not  re-examinable  in  any  other  court.* 

1  Harrison  v.  Nixon,  9  Peters,  R.  483,  v.  Chadbourn,  16  Mass.  433,  441  ;  Laugh- 
505  ;  Story,  Confl.  Laws,  §  479  g.  ton  v.  Atkins,  1  Piclv.  548,  549  ;  Brown" y. 

2  Ante,  Vol.  1,  §§  528,  550.  Wood,    17  Mass.    68,    72.      So  in   Rhode 

3  1  Williams  on  Executors,  b.  6,  eh.  1,  Island.  Tompkins  r.  Tompkins,  1  Story 
pp.  339-348  (1st  Am.  edit.);  1  Jarman  R.  547.  So  in  New  Hampshire.  Poplin 
on  Wills,  pp.  22,  23,  and  notes  by  Perkins ;  v.  Hawke,  8  New  Hamp.  124.  So  in  Con- 
Tom])kins  v.  Tompkins,  1  Story,  R.  547.  neeticut.     Judson  v.  Lake,  3  Dav,  R.  318 ; 

*  Such  is  the  law  in  Maine  and  Massa-  Bush  v.  Sheldon,  1  Day,  R    170.     So  in 

chuseits.     Potter  v.  Webb,  2  Greenl.  257  ;  Ohio.      Bailey  v.  Bailey,  8  Ohio  R.  239 

Small  V.  Small,  4  Greenl.  220,  225  ;  Os-  346.     So  in  Louisiana.     Lewis's  He'irs  v[ 

good  V.  Breed,  12  Mass.  533,  534 ;  DubUn  His  Ex'rs,  5  Louis.  R.  387,  393,  394 ;  Don- 


PART  IV.] 


WILLS. 


587 


§  673.  (2.)  The  highest  degree  of  solemnity  which  is  required 
in  the  formal  execution  of  wills  is  that  which  is  required  in  a  will 
of  lands,  by  the  statute  of  frauds ;  i  and  this  chiefly  respects  the 
signature  and  the  attestation  by  witnesses.  These  formalities,  all  of 
which  are  ordinarily  required  to  be  shown  upon  the  probate  of 
wills  in  the  courts  of  Probate  in  the  United  States,  we  now  pro- 
ceed to  state. 

§  674.  And,  first,  as  to  the  signature  of  the  testator.  A  "  signa- 
ture "  consists  both  of  the  act  of  ivriting  the  party's  name,  and  of 
the  intention  of  thereby  finally  authenticating  the  instrument.  It 
is  not  necessary  that  the  testator  should  write  his  entire  name. 
His  mark  is  now  held  sufficient,  even  though  he  was  able  to  write.^ 

(except  certain  wills  of  soldiers  and  sail- 
ors), shall  be  valid,  "unless  it  shall  be  in 
writing,  and  sijrned  at  the  foot  or  end 
thereof  by  the  testator,  or  some  other  per- 
son in  his  presence  and  by  his  direction ; 
and  unless  such  signature  be  made  or  ac- 
knowledged by  him  in  the  presence  of  two 
or  more  witnesses  present  at  the  same  time, 
and  unless  such  witnessed  attest  and  sub- 
scribe the  will  in  his  presence  ;  and  no 
publication  other  than  is  implied  in  the 
execution  so  attested  shall  be  necessary." 
For  the  formalities  reciuired  in  the  execu- 
tion of  wills  in  the  United  States,  see  6 
Cruise's  Dig.  tit.  38,  ch.  5,  passim,  notes 
(Greenleaf's  ed.  1827). 

■■!  Baker  v.  Dening,  8  Ad.  &  El.  94  ; 
Jackson  v.  Van  Duscn,  5  Johns.  144;  In 
re  Field,  3  Curt.  752  ;  Taylor  r.  Dniing,  3 
N.  &  I*.  228  ;  /')  re  Bryce,  2  Curt.  323 ;  2 
Wilson  V.  Bcddard.  12*  Sim.  28;  Harrison 
V.  Elwin,3  Ad.  &  El.  117,  N.  S.  In  Penn- 
syh-onia  the  will  must  bo  signed  at  the  end, 
with  the  testator's  own  name,  if  he  is  able 
to  write  it ;  and  if  not,  by  some  person  in 
his  pre-icnce  and  by  his  express  direction  ; 
the  incompetency  and  signature  by  request 
being  provided  by  two  witnesses;  Stat. 
Aprfl  8,  1833;  or'by  his  mark  or  cross; 
But.  Jan.  27, 1848.  Dunlap's  Dig.  pp.  •''71, 
1106.  Where  the  testator  made  his  m.irk, 
but  the  scrivener  wrote  the  wrong  Christian 
name  over  it,  the  court  held  that  under 
this  latter  statute  the  will  was  well  exe- 
cuted, the  mark  governing  the  written 
name,  and  satisfying  the  statute.  Long  y. 
Zook,  3  Am.  L;iw  Joum.  27.  In  Ohio, 
New  York,  and  Arkansas,  also,  the  sigria- 
ture  must  be  at  the  end  of  the  will.  See 
6  Cruise's  Dig.  tit.  38,  ch.  5,  §§  1,  9,  notes 
(Greenleaf's  edit.);  [Pridgcn  v.  Pridgen, 
13  Ired.  239.  A  testator's  name  was 
signed  to  his  will  by  another  person,  at  his 
request,  and  he  then  made  his  marL  It 
was  held,  that  this  was  not  a  sufficient  oxe« 


aldson  v.  Winter,  1  Louis  R.  137,  144.  So 
in  Virfjinia.  Bagwell  v.  Elliott,  2  Rand. 
190,  200.  So  in  Alabama,  after  five  years. 
Toulraan's  Dig.  887  ;  Tarter  r.  Tarver,  9 
Peters,  R.  180. 

In  Peiinsyhania  and  North  Carolina,  the 
probate  of  a  will  of  lands  is  prima  facie  evi- 
dence of  the  will,  but  not  conclusive. 
Smith  V.  Bonsall,  5  Rawle,  80, 83 ;  Coates 
V.  Hughes.  3  Binn.  498,  507  ;  Stanley  v. 
Kean.^l  Tavlor,  93. 

In  several  other  States  the  English  rule 
is  followed;  as  in  New  York;  Jackson  t;. 
LeOrange,  19  Johns.  386 ;  Jackson  r. 
Thompson,  6  Cowen,  R.  178;  Rogers  r. 
Rogers,  3  Wend.  514,  515;  and  m  New 
Jerieij ;  Harrison  r.  Rowan,  ."1  Wash.  580  ; 
and  in  Man/lmul ;  Smith  r.  Steele,  1  Har.  & 
McH.  4rJ  ;"l)arby  v.  .Mayer,  10  Wheat.  470; 
and  in  Sunth  Carolmn :  Crojsland  c.  Mur- 
dock,  4  McCord,  217  ;  [Walker  v.  Hunter, 
17  Geo.  .•}64  ;  Hardy  v.  Ilardy,  20  Abu  524.1 
Whetlier  a  will  of  lanils,  duly  proved 
and  recorded,  in  one  State,  so  as  to  be  evi- 
dence in  the  courts  of  that  State,  is  thereby 
rendered  evidence  in  the  courts  of  aiiother 
State,  under  the  constitution  of  the  United 
Stotos,  art.  4,  does  not  appear  to  have  been 
decided.  See  Darby  r.  .NIayer,  10  Wheat. 
465.  In  Ohio,  it  is  made  evidence  by  sta^ 
ate.     Bailev  r.  Bailey,  8  Ohio  R.  239,  240 ; 

i Fortune  v.  Buck,  23  Conn.  1  ;  Barker  v. 
IcFerran,  26  I'cnn.  Sute  R.  211.  In 
Massachu-setts,  the  decree  of  the  court  of 
probate  duly  approving  and  allowing  the 
will  of  a  miiiTied  woman,  unapjwaled  from 
and  unrevirsotl,  is  final  and  conclusive  up- 
on the  heirs  at  law  of  the  testator,  and 
they  cannot  in  a  court  of  common  law 
deny  the  legal  capacity  of  the  testatrix  to 
make  such  a  will.  P'arker  v.  Parker,  1 1 
Gush.  319.  524.)  _       , 

1  29  Car.  2,  c.  3,  §  5.  By  Stat  7  W.  4,  & 
1  Vict.  c.  2r.,  §  9,  it  is  now  provided,  that 
no  will,  whether  of  real  or  personal  estate 


588  LAW  OF  EVIDENCE.  [PART  IV 

And  if  the  signature  is  made  by  another  person  guiding  his  hand, 
with  his  consent,  it  is  sufficient. ^  But  sealing  alone,  without  sign- 
ing, will  not  suffice  ;  nor  is  a  seal  necessary  in  any  case,  unless  it 
is  required  by  an  express  statute.^  One  signature  by  the  testator  is 
enough,  though  the  will  is  written  upon  several  sheets  of  paper  ; 
and  if  the  testim.onium  clause  refers  to  the  preceding  sheets  as  sev- 
erally signed  with  his  name,  whereas  he  has  signed  at  the  end  only, 
this  will  suffice,  if  it  appears  to  have  been  in  fact  intended  to  ap- 
ply to  the  whole.^  Such  intention  would  probably  be  presumed 
from  his  acknowledgment  of  the  instrument,  to  the  attesting  wit- 
nesses, as  his  will,  without  alluding  to  any  further  act  of  signing.* 
Nor  is  it  material  on  what  part  of  the  document  the  signature  is 
written,  if  it  was  made  with  the  design  of  completing  the  instru- 
ment, and  without  contemplating  any  further  signature.  On  this 
ground,  a  will  written  by  the  testator,  and  beginning,  —  "  I,  A.  B. 
do  make,"  &c.,  has  been  held,  under  the  circumstances,  suffi- 
ciently signed.^ 

§  675.  Publication  is  defined  to  be  that  by  which  the  party 
designates  that  he  means  to  give  effect  to  the  paper  as  his  will.^  A 
formal  publication  of  the  will  by  the  testator  is  not  now  deemed  ne- 
cessary ;  it  being  held,  that  the  will  may  be  good,  under  the  statute 
of  frauds,  without  any  words  of  the  testator,  declaratory  of  the  na- 
ture of  the  instrument,  or  any  formal  recognition  of  it,  or  allusion 

cution  of  the  will  under  the  Missouri  stat-  not  essential  to  the  validity  of  a  will  that 

ute.     Northcutt  v.  Northcutt,  20  Mis.  266.  the  different  parts  of  it  should  be  physi- 

If  the  attestation  clause  in  a  will  recites  cally  connected.     It   is   sufficient   if  they 

that  the  testator  has  made  his  mark,  it  is  are  connected  by  their  internal  sense,  or 

sufficient  if  the  testator  writes  his  initials,  by  a  coherence  and  adaptation   of  parts, 

instead  of  making  a  mark.     In  re  Savory,  Wikoff's  Appeal,  15  Penn.  State  R.  281.] 
6  Eng.  Law  &  Eq.  583.]  *  1  Jarman  on  Wills,  pp.  70,  71: 

1  Stevens  v.  Vancleve,  4  Wash.  262,  5  Lemayne  v.  Stanley,  3  Lev.  1  ;  1  Jar- 
269.  [A  dying  man  declared  a  paper  to  man  on  Wills,  p.  70  and  note  (3)  by  Per- 
be  his  will,  tried  to  sign  it,  and  failed,  and  kins  ;  Right  v.  Price,  1  Dougl.  241  ;  Doe 
made  no  request  that  any  one  should  sign  v.  Evans,  1  C.  &  M.  42  ;  3  Tyrw.  56 ; 
it  for  him  ;  and  it  was  held,  that  the  instru-  Sarah  Miles's  Will,  4  Dana,  1 .  In  Ohio, 
mcnt  Wiia  no  will.  Ruoff's  Appeal,  26  Pennsylvania,  New  York,  and  Arkansas, 
Penn.  State  R.  219.]  the  signature  is,  by  statute,  required  to  be 

2  Pratt  V.  McCullough,  1  M'Lean,  R.  placed  at  the  end  of  the  will.  2  Rev. 
69.  And  see  Avery  v.  Pixley,  4  Mass.  Stat.  N.  Y.  p.  63  ;  Watts  v.  The  Public 
460,  462;  Might  v.  Wilson,  1  Dall.  94 ;  Administrator,  4  Wend.  168;  Rev.  StaL 
Doe  d.  Knapp  v.  Pattison,  2  Blackf.  355  ;  Ark.  ch.  157,  §  4.  See  6  Cruise's  Dig.  tit. 
Ante,  Vol.  1,  §  272.  A  seal  is  not  now  38,  ch.  1,5,  9,  14,  18,  19,  notes  (Green- 
requisite  to  the  validity  of  a  will,  in  any  leaf's  ed.  1857).  [*  See  Adams  v.  Field, 
of  the  United  States,  except  New  Hamp-  21  Vt.  256,  where  this  subject  is  very 
shire,  in  which  State  a  seal  seems  still  to  thoroughly  discussed.  And  Redtield  on 
be  required  in  a  devise  of  real  estate,  but  Wills,  Pt.  1,  210 J 

not  in  a  will  of   personalty.      See  Rev.        6  pg,.  Qibbs,  C.  J.,  in  Moodie  v.  Reid, 

Stat.  ch.  156,  §  6  ;  Stat.  1848,  ch.  424.  7  Taunt.  362  ;  [Dean  v.  Dean,  1  WiUiams 

8  Wiusor  V.  Pratt,  2  B.  &  B.  650.    It  is     ( Vt.)  746  ;  Cilley  v.  Cilley,  34  Maine,  162.] 


PART  IV.]  WILLS.  689 

to  it.^  But  though  sanity  is  generally  presumed,  yet  it  is  incum- 
bent  on  the  party  asking  for  the  probate  of  a  will  affirmatively  to 
establish  that  the  testator,  at  the  time  of  executing  it,  knew  that 
it  was  his  will.^  It  is  not  necessary,  however,  that  this  knowledge 
bo  proved  by  direct  evidence ;  it  may  be  inferred  from  his  obser- 
vance of  the  forms  and  solemnities  required  by  statute  for  the  due 
execution  of  a  will.^  And  whore  the  testator,  knowing  the  instru- 
ment to  be  his  will,  produced  it  to  three  persons,  asking  them  to 
attest  it  as  witnesses ;  and  they  did  so  in  his  presence,  and  re- 
turned it  to  him,  this  was  considered  as  a  sufficient  acknowledg- 
ment to  thorn,  in  fact,  that  the  will  was  his.* 

§  676.  Nor  is  it  deemed  necessary  that  the  witnesses  should 
actually  see  the  testator  sign  his  name.  The  statute  does  not  in 
terms  require  this,  but  only  directs  that  the  will  be  "  attested  and 
subscribed  in  the  presence  of  the  testator  by  three  or  four  credible 
witnesses."  They  are  witnesses  of  the  entire  transaction;  and 
therefore  it  is  held,  that  an  acknowledgment  of  the  instrument,  by 
the  testator,  in  the  presence  of  the  witnesses  whom  he  requests  to 
attest  it,  will  suffice ;  and  that  this  acknowledgment  need  not  be 
made  simultaneously  to  all  the  witnesses,  but  is  sufficient  if  made 

1  Itid  1  Jarman  on  Wills,  p.  71.  See  such  as  his  i-norance,  sickness,  state  of 
6  Cruise's  Dig.  tit.  38,  ch.  f>,  §§  14.  18,  mind,  or  the  like;  or  the  inconsistency  of 
52,  notes  (Greenlcafs  ed.  18.i7).  White  its  provisions  with  his  obvious  duty  or 
V  The  British  Museum,  6  Binfr.  310;  known  affections;  or,  the  character  and 
WriKht  .;.  Wright,  7  Bin-.  457  ;  Warren  interests  of  the  person  who  wrote  the  m- 
V.  Postlethwaitc,  9  Jur.  721.  And  .see  4  strument  Ibid;  In^^ram  v.  A\  yatt  1 
Kent.  Comm.  pp.  515.  516;  Small  v.  Ha-.  Eccl.  K  384;  l\.rke  v.  Ullat,  2 
Small,  4  Greenl  220.  This  question  is  Phillim.  Eccl.  R.  324  ;  Pa.nc  v  IlaU,  18 
now  settled  accordingly,  in  England,  by  Ves.  475;  IJ^'-''^^;,.^-  I^^l-^l^; ',  ,f  .^"[J- 
Stat    1  Vict.  ch.  26,  §§  9.  11.  12,  13.  226.    [/n  re  Maxwell  s  Will.  4  Habt.  Ch.li. 

2  White  V  The  British  Museum,  6  (N.  J.)  251.  And  where  the  due  execution 
Bine-  310 ;  Sweet  v.  Boardman,  1  Mass.  of  the  will  and  the  sanity  of  tlie  testator 
258"'  4  Dane,  Abr.  p.  568  ;  Gerrish  v.  are  shown,  it  will  be  presumed  that  the 
N'lson  9  Shepl.  438.  In  Neiu  York,  a  testator  knew  its  purport,  though  he  could 
declaration  of  the  testator,  that  the  instru-  not  read  the  language  in  which  it  was 
ment  is  his  will,  is  required  by  2  Rev.  written.  Hoshaucr  r.  Hoshauer,  26  1  enn. 
Stat  D  63  5  40.  See  Brinckerhoof  v.  State  R.  404.]  .  .  ,  ,, 
Remse^n.  8  Pai^e,  488  ;  26  Wend.  325, 330.  *  White  ..  The  British  Museum  6 
S  C  So  in  ^'orth  Carolina.  1  Jarman  Bing.  310.  See  also  Hall  v.  Hall,  17  Pick. 
on  Wills,  p.  71.  note  (1)  by  Perkins.  373.     [A   will  in  the  handwriting  of  the 

8  Rav  V    Walton,  2  A.  K.  Marsh.  71.  testator,  and  signed   by  him  in   the  pres- 

And    see   Trimmer  v.  Jackson,  4  Burn's  ence  of  three  competent   witnesses,   who 

Eccl  L.  p.  130  (8th  edit.).     On  proof  of  attest  the  same  at  Ins  request  and  m  his 

the  si<rnature  of  the  testator,  it  will  ordi-  presence,   is  well   executed,  altliough   the 

narily^be  presumed  that  he  knew  the  con-  testator  does  not  declare  to  the  witnesses, 

tents  of  the  will.     Billinghurst  v.  Vickers,  and  they  do  not  know,  that  it  is  his  will 

1  Phillim.  Eccl.  R.  191  ;  Fawcctt  v.  Jones,  Osborn  v.  Cook,  11   Cu,sh.  532 ;  Hogan  v. 

3  Phillim.  Eccl.  R.  476 ;  Wheeler  v.  Al-  Grosvenor,  10  Met.  54.     See   also   Beane 

5eSn    3-Hagg.  Eccl.  R.  587.     But  this  .  Yerby.   12  Gratt.  (Va.)   239.     But  sea 

presumption  may  be  repelled  by  proof  of  Brown  v.  De  belding,  4  bandf  Sup.  Ct. 

any  circumstances  of  an  opposite  nature,  10.] 


590 


LAW   OF  EVroENCE. 


[part  IV. 


separately  to  each  one,  and  at  different  times.^  Nor  is  it  necessary 
that  the  acknowledgment  be  made  in  express  terras;  it  maybe 
implied  from  circumstances,  such  as  requesting  the  persons  to  sign 
their  names  as  witnesses.  But  in  such  cases,  it  must  appear  that 
the  instrument  had  previously  been  signed  by  the  testator .2 

§  677.   The  will  must  also  be  attested  and  subscribed  by  at  least 
three  competent  witnesses.^    And  here  also,  as  in  the  case  of  the 

1  Ilott  V.  George,  3  Curt.  160 ;  In  re 
Rawlins,  2  Curt.  326  ;  In  re  Warden,  Id. 
331  ;  In  re  Ashmore,  3  Curt.  607  ;  Blake 
T.  Knight,  Id.  547.  [Where  one  of  the 
subscribing  witnesses  positively  negatives 
the  fact  of  the  signing  or  of  the  acknowl- 
edgment of  the  signature  by  the  deceased  in 
his  presence,  and  there  are  no  circurnstan- 
ces  that  raise  any  presumption  of  his  be- 
ing mistaken,  the  proposed  will  cannot  be 
admitted  to  probate.  Noding  v.  Alliston,  2 
Eng.  Law  &  Eq.  594.  See  Shaw  v.  Neville, 
33  lb.  615  ;  Bennett  v.  Sharpe,  lb.  618.] 

2  1  Jarman  on  Wills,  pp.  71,  72,  and 
note  (1 )  by  Perkins  ;  Grayson  v.  Atkinson, 
2  Ves.  454,  460;  Hall  v.  Hall,  17  Pick. 
373  ;  Dewey  v.  Dewey,  1  Met.  349  ;  Gaze 
I'.  Gaze,  3  Curt.  551  ;  Keigwin  v.  Keigwin, 
Id.  607  ;  Cooper  v.  Bockett,  4  Moore,  P. 
C.  Rep.  419.  It  is  held  otherwise  in  New 
Jersey,  under  the  act  of  1714.  Den  v. 
Matlock,  2  Harrison,  R.  86 ;  4  Kent, 
Comm.  414,  n. ;  Johnson  v.  Johnson,  1 
Cr.  &  M.  140;  Supra,  §  295. 

3  "  By  the  New  York  Revised  Statutes 
(vol.  2,  p.  63,  §§  40,  41),  the  testator  is 
to  subscribe  the  will  at  the  end  of  it,  in 
the  presence  of  at  least  two  witnesses,  who 
are  to  write  their  places  of  residence  op- 
posite their  names,  under  the  penalty  of 
fifty  dollars  ;  but  the  omission  to  do  it 
will  not  effect  the  validity  and  effieienc}' 
of  their  attestation.  Lewis  v.  Lewis,  13 
Barb.  17.  Three  witnesses,  as  in  the 
English  Statute  of  Frauds,  are  required 
in  Vermont,  New  Hampshire,  Maine,  Mas- 
sachuseJls,  Rhode  Island,  Connecticut,  New 
Jersey,  Maryland,  Florida,  South  Carolina, 
Geori/ia,  Alabama,  and  Mississippi.  Two 
witnesses  oidy  are  required  in  New  York, 
Ohio,  Michiyan,  Delaware,  Viryinia,  Indi- 
ana, Illinois,  Missouri,  North  Carolina,  Ken- 
tucky, Tennessee  [Wisconsin],  and  Arkan- 
sas. In  some  of  the  States  the  provision 
as  to  attestation  is  more  special.  In  Penn- 
sylvania, a  devise  of  lands  in  writing  will 
be  good  without  any  subscribing  witness- 
es, provided  the  authenticity  of  it  can  be 
proved  by  two  witnesses ;  and  if  the  will  be 
subscribed  by  witnesses,  proof  of  it  may  be 
made  liy  others.  Hight  v.  Wilson,  1  Dallas, 
94  ;  Per  Huston,  J. ;  1  Watts,  463.  Proof 
of  the  signature  of  tlic  testator  to  a  will  by 


two  witnesses  is  prima  facie  evidence  of  ita 
execution,  although  the  body  of  it  be  not 
in  the  handwriting  of  the  testator.  Wei- 
gel  V.  Weigel,  5  Watts,  486.  In  North 
Carolina  two  v/itnesses  are  required  to  a 
will  of  real  estate,  unless  the  will  is  in  the 
handwriting  of  the  deceased  person,  and 
is  found  among  his  valuable  papers,  or 
lodged  with  some  person  for  safe-keeping. 
The  name  of  the  testator  in  such  case 
must  be  proved  by  the  opinion  of  three 
witnesses.  1  Rev.  Laws,  N.  C.  619,  620, 
ch.  122,  §  1.  So  in  Tennessee.  In  Vir- 
ginia,  if  the  will  is  not  wholly  written  by  , 
the  testator,  it  must  be  attested  by  two  or 
more  credible  witnesses,  &c.  1  Rev.  Code, 
Virg.  375.  In  Mississippi,  there  must  be 
three  witnesses  to  a  will  of  real,  and  one 
to  a  will  of  personal  estate,  unless  wholly 
written  and  subscribed  by  the  testator. 
Howard  &  Hutch.  Dig.  Laws  Miss.  (1840) 
p.  386,  ch.  §  2.  In  Arkansas,  a  will  writ- 
ten through  by  the  testator  needs  no  sub- 
scribing Avitnens,  but  the  will  must  be 
proved  in  such  case  by  three  disinterested 
witnesses,  swearing  to  their  opinion.  Still 
a  will  in  due  form  subscribed  will  be  ef- 
fectual as  against  one  not  so  subscribed. 
Rev.  Stat.  cb.  157,  §§  4,  5.  Every  person 
in  that  State  who  subscribes  the  testator's 
name  shall  sign  as  witness,  and  state  that 
he  signed  the  testator's  name  at  his  re- 
quest. Ibid.  A  will  executed  in  Soxith 
Carolina,  in  the  presence  of  two  witnesses, 
who  alone  subscribe  it,  is  not  sufficiently 
executed  under  the  statute  to  pass  real 
estate,  although  the  scrivener  was  also 
present  at  the  execution,  and  a  codicil  ex- 
ecuted in  the  presence  of  two  subscribing 
witnesses,  one  of  whom  was  different  from 
the  two  witnesses  to  the  will,  does  not  give 
effect  to  the  will  as  to  the  real  estate. 
Dunlap  V.  Dunlap,  4  Desaus.  305.  The 
laws  of  South  Carolina,  at  the  time  of  the 
above  decision,  required  three  witnesses  to 
a  will  of  real  estate  only.  Statutes  at 
Large  of  S.  Car.,  Vol.  3,  p.  342,  No.  544, 
§2;  Id.  Vol.  4,  p.  106,  No.  1455,  §  2; 
Id.  Vol.  6,  p.  238,  No.  2334,  §  8."  See  I 
Jarman  on  Wills,  p.  69a,  note  by  Perkins; 
4  Kent,  Comm.  514  ;  Ante,  Vol.  1 ,  §  272,  n 
(1);  6  Cruise's  Dig.  tit.  38,  ch.  5,  §  1, 
note;  Id.  §  14,note  (Greenleaf s  ed   1857)- 


PART  IV.]  "WILLS.  591 

testator,  a  raark  made  by  the  witness  as  his  signature  is  a  sufficient 
attestation. 1  No  particular  form  of  words  is  necessary  in  the  at- 
testation-clause, nor  need  it  express  that  the  witnesses  signed  in 
the  presence  of  the  testator,  it  being  sufficient  if  this  is  actually 
proved.^  It  may  also  be  inferred  from  the  regular  appearance  of 
the  instrument,  or  other  circumstances  in  the  case.^ 

§  678.  The  requisition  that  the  witnesses  should  subscribe  their 
names  in  the  presence  of  the  testator  is  in  order  that  he  may  have 
ocular  evidence  of  the  identity  of  the  instrument  attested  as  his 
will,  and  to  prevent  the  fraudulent  substitution  of  another.  To  con- 
stitute this  "  presence,"  it  is  necessary  not  only  that  the  testator 
be  corporally  present,  but  that  he  be  mentally  capable  of  recogniz- 
ing, and  be  actually  conscious  of,  the  act  which  is  performed  before 
him.  Tlierefore  if,  after  he  had  signed  and  published  his  will,  and 
before  the  witnesses  subscribe  it,  he  falls  into  a  state  of  insensi- 
bility, whether  temporary  or  permanent ;  ^  or,  if  the  will  is  sub- 
scribed by  the  witnesses  in  a  secret  and  clandestine  manner,  with- 
out his  knowledge,  though  it  be  in  the  same  apartment ;  in  both 
cases  it  is  alike  void.^  To  be  corporally  present,  it  is  not  essential 
that  the  testator  be  in  the  same  apartment ;  for  if  the  situation  and 
circumstances  of  the  parties  are  such  that  the  testator  in  his  act- 
ual position  might  have  seen  the  act  of  attestation,  it  is  enough, 
though  they  are  not  in  the  same  apartment,^  nor  even  in  the  same 
bouse  ;  ">  and,  on  the  other  hand,  if  his  view  of  the  proceedings  is 

1  Ante,  Vol.  1,  §  272  ;  Harrison  i'.  liar-  York  the  statute  has  not  made  it  necessa- 
rison,  8  Ves.  185  ;  Adily  v.  Grix,  Id.  504;  ry  that  the  witnesses  should  subscribe  in 
George  v.  Surrey,  1  M.  &  Malk.  516;  the  presence  of  the  testator.  4  Kent, 
Jackson  v.  Van  Deusen,  5  Johns.  144;  Comm.  514,  515.  So  in  Arkansas  and  in 
Adams  v.  Chaplin,  1  Hill,  S.  Car.  Rep.  New  Jerseu.  In  Vermont  alone  the  wit- 
266;  9  Louis.  R.  512;  4  Kent,  Comm.  nesses  are  required  to  sign  in  presence  of 
514,  n. ;  Harrison  v.  Elwin,  3  Ad.  &  El.  each  other.  See  6  Cruise's  Dig.  tit.  38, 
117,  N.  S. ;  Doe  v.  Davis,  11  Jur.  182.  ch.  5,  §§  1,  23,  notes  (Grecnlcaf's  ed 
[See  also  Wigan  v.  Rowland,  21  Eng.  1857).  [Blanchard  v.  Blanchard,  32  Vt. 
Law  &  Eq.  132.]  62.] 

2  Where  the  witnesses  testified  that  they  ^  Longford  v.  Eyre,  1  P.  Wms.  740. 
saw  the  testiitor  write  on  a  paper,  and  that  ^  Shires  v.  Glascock,  2  Salk.  688  ;  1  Ld 
they  signed  it  as  witnesses,  but  they  could  Raym.  507,  S.  C. ;  Winchelsea  v.  Wau- 
not  now  swear  that  what  he  wrote  was  his  chope,  3  Rus.  441,  444;  Tod  v.  E.  of 
name,  nor  to  his  name  being  on  the  will,  Winchelsea,  2  C.  &  P.  488,  S.  C. ;  Davy 
but  they  identified  the  instrument  produced  r.  Smith,  3  Salk.  395.  In  Russell  v.  Falls, 
as  being  the  paper  they  subscribed,  on  3  Har.  &  McHen.  463,  464,  which  was 
which  was  the  testator's  signature ;  this  very  much  considered,  it  was  held,  that  it 
was  held  sufficient.  Thompson  v.  Hall,  was  necessary  that  the  testator  should  have 
16  Jur.  1144;  14  Eng.  L.  &  Eq.  R.  596.  been   able   to  see  the  attestation    without 

8  Handv   v.   James,    2    Com.   R.   531 ;  leaving  his  bed.     And  see,  to  the  same  ef- 

Croft  V.   Pawlett,  2   Stra.  1109;  Jackson  feet,    Doe  v.   Manifold,    1    M.   &  S.  294. 

V.  Christman,  4  Wend.  277  ;  Burgoyne  v.  [See  Moore  v.  Moore,  8  Gratt.  307  ;  Lyon 

Bhowlor,  1  Rob.  Eccl.  R.  3.  v.  Smith,  11  Barb.  104.] 

*  Right  V.  Price,  1  Doug.  241.     In  New  ^  Casson  v.  Dade,  1  Bro.  Ch.  Gas.  99 ; 


i)92 


LAW   OF  EVIDENCE.  [PART  IV. 


necessarily  obstructed,  the  mere  proximity  of  the  places  of  his  sig- 
nature and  of  their  attestation  will  not  suffice,  even  though  it  were 
in  the  same  apartment.^  An  attestation,  made  in  the  same  room 
with  the  testator  is  presumed  to  have  been  made  in  his  presence 
until  the  contrary  is  shown  ;  and  an  attestation  not  made  in  the 
same  room  is  presumed  not  to  have  been  made  in  his  presence, 
until  it  is  shown  to  have  been  otherwise. ^  In  the  absence  of  op- 
posing evidence,  it  will  also  be  presumed,  that  the  attestation  was 
subscribed  in  the  most  convenient  part  of  the  room  for  that  pur- 
pose, taking  into  consideration  the  kind,  and  the  ordinary  or  ac- 
tual position,  of  the  furniture  therein.^ 

§  679.  It  is  proper  here  to  add,  that,  after  the  lapse  of  thirty 
years,  with  possession  of  the  estate  according  to  the  tenor  of  the 
will,  its  regular  execution  will  be  presumed,  without  proof,  by 
subscribing  witnesses.*  Whether  the  thirty  years  are  to  be  com- 
puted from  the  date  of  the  will  or  from  the  death  of  the  testator 
is  a  question  upon  which  learned  judges  are  not  agreed ;  some 
holding  the  former,  which  is  now  considered  the  better  opinion, 
upon  the  ground  that  the  rule  is  founded  on  the  presumption 
that  the  witnesses  are  dead,  and  the  consequent  impossibility  of 
proving  the  execution  of  the  will ;  ^  and  others  holding  the  latter, 
on  the  ground  that  it  is  the  accompanying  possession  alone 
which  establishes  the  presumption  of  authenticity  in  an  ancient 
deed.^ 

§  680.   A  will  of  lands,  thus  proved  to  have  been  made  with  all 

Dewey  v.  Dewey,  1  Met.  349.   [Where  the  and  that  all  other  legal  formalities  were 

witnesses  to  a  will  subscribe  their  names  observed.     1  Jarman  on  Wills,  pp.  29,  30; 

not  in   the   same  room  with,  nor  in  the  Longchamp   v.    Fisk,   2    New   Rep.   415; 

presence,  view,  or  hearing  of  the  testator,  Finchara  v.  Edwards,  3  Curt.  63  ;  Boyd 

although  in  a  room  connected  by  an  inter-  v.  Cook,  3  Leigh,  R.  32  ;  Lewis  v.  Lewis, 

mediate  room  with   that  in  which  he  is  7  S.  &  R.  489 ;  In  the  goods  of  Piercy,  1 

lying,  it  is  not  a  sufficient  signing.     Bold-  Rob.  Eccl.  R.  278 ;  Ray  o.  Hill,  3  8trobh. 

ry  V.  Parris,  2  Cush.  434.]  297  ;  [Clifton  v.  Murray,  7  Geo.  564.J 

1  Edlcstone  v.  Speake,  1  Show.  89;  Ec-  *  Ante,  Vol.  1,  §§  21,    142-144,  570; 

cleston  V.  Petty  al.   Speke,  Carth.   79,  S.  Croughton  v.   Blake,    12   M.   &  W.  205, 

C. ;  Edclcn  v.  Hardey,  7  Har.  &  J.   61  ;  208 ;  Jackson  v.  Thompson,  6  Cowen,  R. 

Russell  w.  Falls,  3   Har.  &  McHen.  457 ;  178,     180;    Fetherly    v.     Waggoner,     11 

In  re  Colman,  3  Curt.  118.     But  see  New-  Wend.  599 ;  Stai'ing  v.  Bowen,  6  Barb.  S. 

ton  V.  Clark,  2  Curt.  320.     The  cause  of  C.  R.  109. 

the  witnesses'  absence  does  not  affect  the  ^  Jackson  v.   Blanshan,  3   Johns.  292 

rule,  even  though  it  were  at  the  request  of  295,   per   Spencer,   J.     See,    accordingly, 

the   testator.     Broderick   v.   Broderick,   1  Oldnall  v.  Deakin,  3  C.  &  P.  402  ;  Gough 

P.  Wins.  239;  Machell ».  Temple,  2  Show.  v.  Gough,  4  T.  R.  707  n.;  McKenire  v. 

288.  Frazer,  9  Ves.  5 ;  Doe  v.  Woollev,  8  B. 

'^  Neil  V.  Neil,  1  Leigh,  R.  6.  &  C.  22  ;  Ante,  §  310 ;  and  Vol.  1,  §  570. 

^  Winchclsea  i;.  Wauchope,  3Rus9.  441.  ^  Jackson   v.   Blanshan,   3  Johns.   292, 

The  will  of  a  blind  man  is  valid,  notwith-  298,  per   Kent,  C.  J.  and    Van  Nest,  J. ; 

standing  his  blindness,  if  it  clearly  appears  Shaller  v.   Brand,  6  Bin    43.5,  439,444, 

tkat  no  imposition  wa;i  practised  upon  him,  447. 


PART  IV.]  WILLS.  693 

the  legal  formalities,  is  presumed  to  have  existed  until  the  death 
of  the  testator ;  ^  but  this  presumption  may  be  rebutted  by  proof 
of  its  subsequent  revocation.'^  And  this  revocation  may  be  proved 
by  evidence  of  an  express  act  of  revocation  by  the  testator,  such  as 
cancelling,  obliterating,  or  destroying  the  instrument,  or  executing 
some  other  will  or  codicil,  or  writing  of  revocation  ;  or  it  may  be 
implied  from  other  acts  and  circumstances,  inconsistent  with  the 
continuance  of  any  intention  that  the  will  should  stand,  such  as 
alienation  or  alteration  of  the  estate,  marriage,  and  the  birth  of  is- 
sue, or  other  sufficient  material  change  in  the  relations  and  con- 
dition of  the  testator.  The  former  class  falls  under  the  statute 
of  frauds,  which  enacts,  that  "  no  devise  of  lands,  tenements, 
or  hereditaments,  nor  any  clause  thereof,  shall  be  revocable, 
otherwise  than  by  some  otlier  will  or  codicil,  in  writing,  or  other 
writing  declaring  the  same ;  or  by  burning,  cancelling,  tearing, 
or  obliterating  the  same,  by  the  testator  himself,  or  in  his  pres- 
ence, and  by  his  directions  and  consent."^  And  to  such  writ- 
ing of  revocation,  the  attestation  of  three  witnesses,  at  least,  is 
required. 

§  G81.  The  acts  of  express  revocation  are  therefore  of  three  classes. 
First  by  a  subsequent  will  or  codicil,  inconsistent  with  the  former, 
or  plainly  intended  as  a  substitute  for  it ;  and  this  must  be  execut- 
ed in  the  manner  we  have  already  considered.  If  the  subsequent 
instrument,  whether  it  be  a  will  or  a  codicil,  though  it  pro- 
fessed an  intent  to  make  a  different  disposition  of  the  whole  estate, 
does  in  fact  so  dispose  of  a  part  only,  it  is  but  a  revocation  pro 
tanto.^  Secondly,  by  a  written  instrument  of  revocation  ;  which,  it 
is  to  be  observed,  the  statute  does  not  require  should  be  attested 
in  the  presence  of  the  testator,  like  a  will  ;  but  to  take  effect  as  a 
revocation  only,  it  must  contain  an  express  declaration  of  an  in- 

1  Jackson  i;.  Belts,  9  Cowen,  R.  208 ;  *  Brant  v.  Wilson,  8  Cowen,  R.  56 ; 
Irisli  r.  Smith,  8  S.  &  R.  573.  Harwood   v.    Goodright,    Cowp.  87.     See 

2  As  to  the  revocation  of  wills,  sec  6  also  Hearle  v.  Hicks,  1  CI.  &  Fin.  20 ; 
Cruise's  Diy.  tit.  38,  ch.  6  (Greenleafs  Henfiey  v.  Henfrcy,  4  Moore,  P.  C.  Rep. 
ed.  1 857 ),  where  the  American  law  is  stated  29.  The  republication  of  a  former  incon- 
in  the  notes.  sistent  will  is  also  a  revocation  of  a  subse- 

8  8tat.  29  Car.  2,  ch.  3,  §  6.  Such  is  quent  will.  Ilavard  v.  Davis,  2  Binn.  406. 
in  general  the  language  of  the  American  [See  also  Coffin  v.  Otis,  11  Met.  ]^6; 
statutes  on  this  subject.  4  Kent,  Comm.  Plenty  v.  West,  15  Eng.  Law  &  Eq.  283; 
514,  520,  521,  n.  The  difference  between  Freeman  i-.  Freeman,  27  lb.  351.  A  de- 
wills  of  land  and  of  personal  property,  in  termination  expressed  by  a  testator,  in  a 
regard  to  the  evidence  of  revocation, .  as  codicil  to  his  will,  to  make  an  alteration 
well  as  the  formalities  of  execution,  is  in  the  will  in  one  particular,  negatives  by 
now  admitted  in  so  few,  if  any,  of  the  implication  any  intention  to  alter  it  in  any 
United  States,  that  it  is  deemed  inexpedi-  other  respect.  Quincy  v.  Rogers,  9  Cash, 
ent  iierc  to  advert  to  it.  291.] 

VOL.  II.  38 


594  LAW   OF  EVIDENCE.  [PART  IV 

tention  to  revoke.  If  the  instrument  purports  to  be  a  subsequent 
will,  and  is  well  executed  to  take  effect  as  a  will,  it  will  also  have 
efifect  as  a  revocation  of  all  former  wills  touching  the  same  matter, 
without  any  words  of  revocation ;  but  if  it  does  not  contain  any 
testamentary  disposition,  then,  though  it  is  well  executed  as  a  rev- 
ocation, it  will  not  so  operate,  unless  such  intention  is  expressed.^ 
Thirdly,  by  some  act  of  reprobation,  spoliation,  or  destruction  done 
upon  the  instrument,  animo  revocandi.  But  if  the  act  be  done 
without  such  intention,^  or  not  in  the  presence  of  the  testator, 
though  by  his  direction,  it  is  of  no  force.^  It  has  accordingly  been 
held,  that  slightly  tearing  the  will  and  throwing  it  on  the  fire, 
though  it  were  only  singed,^  or  a  partial  burning  of  the  paper,^ 
or  tearing  off  a  seal,  though  superfluous,^  the  intention  thereby  to 
revoke  being  clear,  was  a  sufficient  revocation.  So,  if  a  material 
part  of  a  devise  or  bequest  be  obliterated  by  the  testator,  it  is  a 
sufficient  revocation  pro  tanto,  although  it  be  merely  by  drawing 
the  pen  across,  and  the  writing  be  still  legible.^  But  if  it  be  an 
obliteration  of  the  name  of  a  devisee  or  legatee,  in  some  parts  of 
the  will,  while  in  other  parts  it  is  left  standing,  the  court  will  not 
ordinarily  feel  warranted  in  holding  that  the  bequest  is  thereby 
revoked.^     So,  if  the  obliteration  is  on  the  envelope  only,  it  is  not 

1  Roberts  on  Frauds,  463-466  ;  Onions  mere  direction  to  another  by  the  testator, 

V.  Tyrer,   1    P.  Wins.    343  ;  Limbery    v.  to  destroy  his  will,  is  not  sufficient,  unless 

Mason,  2  Com.  R.  451  ;  Bethell  v.  Moore,  some  act  of  destruction  is  thereupon  done. 

2  Dev.  &  Bat.  311  ;  1  Jarm.  on  Wills,  121,  Giles  v.  Giles,  1  Cam.  &  Nor.  174  ;  Ford 

122,125,   129,  156.     The  same  principle  i;.  Ford,  7  Humph.  92.     [See  also  Pryoru. 

applies  to  an  intended  revocation  by  ob-  Coggin,  17  Geo.  444.] 

literation  ;  if  it  be  not  duly  attested,  it  has  ^  Doe  j\  Harris,  6  Ad.  &  El.  209. 

no  effect.     Ibid.;  Kirk  v.   Kirk,  4  Russ.  *>  Avery  v.  Pixley,  4   Mass.   462.     See 

435.     But  though  the  second  will  should  ante,  Vol.  1,  §  273.     In  all  tliese  and  simi- 

■fail  of  taking  effect,  yet  if  it  is  perfectly  lar  cases,  the  will  being  jD77';«ayaae  revoked, 

executed,   and   the   failure   arises   merely  the  burden  of  proof  is  on  the  party  setting 

from    some  incapacity   of  the   party   for  up  the  will  to  show  that  the  act  of  destruc- 

whose  benefit  it  is  made  to  take  under  it,  tion  was  done  by  accident  or  mistake,  or 

the  second  will  may  still  operate  as  a  revo-  without  intention  to  revoke  the  will.     Case 

cation  of  the  first.     Laughton  v.  Atkins,  of  Cook's  Will,  3  Am.  Law  Journ.  353, 

1  Pick.  535,  543.  N.  S. 

'^  Hence,  if  the  testator  were  insane,  the  "^  Sutton  v.  Sutton,  Cowp.  812  ;  Mence 

destruction  of  the  instrument  by  his  order  v.  Mence,  18    Ves.  348,  350.     As   to   the 

is  no  revocation.    Ford  v.  Ford,  7  Humph,  time  when   alterations   are  presumed   to 

92.  have  been   made,  see  ante,  Vol.  1,  §  564. 

8  Onions  v.  Tyrer,  1  P.  Wms.  343,  345  ;  The  cases  of  Burgoyne  v.  Showier,  1  Rob. 

Scruby  v.  Fordham,  1  Add.  74 ;  Trevel-  Eccl.    R.    5,   and    Cooper   v.   Bockett,   4 

yan  v.  Trevclyan,  1  Phillim.  149;  Haines  Moore,  P.  C.  C.  419,  on  this  point,  turn 

V.  Haines,  2  Vern.  441  ;  Dan  v.  Brown,  4  on  the  language  of  the  Stat.  1  Vict.  c.  26, 

Cowen,  R.  490;  Boudinot  v.  Bradford,  2  §  21. 

Dall.  266 ;  2  Yeates,  170,  S.  C. ;  Clarke  v.  »  Martins  v.  Gardiner,  8  Sim.  73  ;  U^ 

Scripps,  16  Jur.  783 ;  Ante,  Vol.  1,  §  263.  terton  v.  Utterton,  3  Ves.  &  Beames,  122. 

*  Bibb  V.   Thomas,    2    W.    Bl.    1043 ;  If  the  will  is  found  in  the  testator's  posses- 

Winsor  v.  Pratt,  2  B.  &  B.  650  ;  Johnson  sion,  obliterated,  the  presumption  is,  that 

».  Brailsford,  2  Nott  &  McCord,  272.    The  it  was  so  done  by  him  ;  and  the  burden 


PART  IV.]  WILLS.  695 

sufficient.^  If  an  alteration  or  obliteration  is  in  pencil,  it  may  be 
final,  or  it  may  be  deliberative.  From  the  nature  of  the  act,  un- 
explained, it  is  held  to  be,  prima  facie,  deliberative,  and  not  final ; 
but  it  will  be  left  with  the  jury  to  determine,  upon  the  collateral 
evidence,  the  actual  intent  with  which  it  was  made.^  If  the  will 
is  proved  to  have  been  in  the  testator's  possession,  and  cannot  af- 
terwards be  found,  it  will  be  presumed  that  he  destroyed  it,  animo 
revocandi ;  but  if  it  is  shown  out  of  his  possession,  the  party  as- 
serting the  revocation  must  show  that  it  came  again  into  his  cus- 
tody, or  was  actually  destroyed  by  his  direction. ^ 

§  682.  If  the  will  was  executed  in  duplicate,  and  the  testator 
destroys  one  part,  the  inference  generally  is  that  he  intended  to 
revoke  the  will,  but  the  strength  of  the  presumption  will  depend 
much  on  the  circumstances.  Thus,  if  he  destroys  the  only  copy 
in  his  possession,  an  intent  to  revoke  is  very  strongly  to  be  pre- 
sumed ;  but  if  he  was  possessed  of  both  copies  and  destroys  but  one, 
it  is  weaker ;  and  if  he  alters  one  and  then  destroys  it,  retaining 
the  other  entire,  the  presumption  has  been  said  still  to  hold,  though 
more  faintly  ;*  but  the  contrary  also  has  been  asserted.^  If  the 
will  is  destroyed,  but  a  codicil  is  left  entire,  the  question,  whether 
the  destruction  of  the  will  operates  as  a  revocation  of  the  codicil 
also,  will  depend  much  upon  their  contents.  If  they  are  insepa- 
rably connected,  the  codicil  will  be  held  revoked  also  ;  but  if,  from 
the  nature  of  its  contents,  it  is  capable  of  subsisting  independently 
of  the  will,  its  vahdity  may  not  be  aff'ected.^ 

§  683.  Where  the  latter  of  two  inconsistent  wills  is  subse- 
quently destroyed,  or  otherwise  revoked,  by  the  testator,  it  was 

of  showing   that  it  was   done   otherwise  Wait,  4  Barb.   S.   C.  R.  28 ;  [Rhodes  v. 

lies  on  the  party  offering  it  lor  probate,  or  Vinson,  9   Gill,   169;  Clarke  v.  Scnpps, 

claiming  under  it.     Baptist   Ch.  v.  Rob-  22  Eng.  Law.  &  Eq.  627.] 
barts  2Barr,  110.     And  sec  Wvn  w.  Hev-         8  i   Jarinan   on   Wills,   119,  and  cases 

eringham,  1  Col.  N.  C.  630.     Biit  if  it  has  there  cited  ;  iMinkler  i-.  Minkler,  U  Verm, 

been   in    the   possession  of  one  adversely  R.  174;  Helyar  v.  Helyar,  1   Pliillim.  R. 

interested,  the  presumption  does  not  arise.  417,  421,  427,  n.,  430,  439,  n. ;  Lillie  v. 

Bennett  u.  Sherrod,  3  Ired.  303.  Lillie,  3  Hagg.   Eccl.   R.  184;  Loxley  v. 

1  (Jrantley  v.  Garthwaite,  2  Russ.  90.  Jackson,  3  Phillim.  126.     But  see  Jackson 

2  Francis  v.  Grover,  .5  Hare,  39.     And  v.  Betts,  9  Cowen,  R.  208. 

see  Edwards  v.  Astley,  I   Hagg.  Ecd.   R.  *  S-.'ymour's  case,  cited  1  P.  Wms  346  ; 

493,   494;  Hawkes   v.    Hawkcs,  Id.  321;  2  Com.   U.   453;  Burtcnshaw  v.  Gilbert, 

Rvmesr.  Clarkson,  1  Phillim.  Eccl.  R.  25,  Cow|..    49,  52;  Pembcrton  v.  Pemberton 

33;  Parkin  v.  Bainbridge,  3  Phillim.  Ecd.  13  Ves.  310.     And  see  O'Neal  v.  iarr,  1 

R.  321 ;  Dickenson  v.  Dickenson,  2  Phil-  Rich.  80.                               tt          t-    i  u 

lira.  Eccl.  R.  173;  Lavender  v.  Adams,  1  ^  Roberts  v.  Round,  3  Hagg.  EccL  K. 

Adams,   403;    Ravenscroft  v.   Hunter,   2  548.                                        .  , ,   ,   ^    n*-  j 

Hagg.  Eccl.  R.  68.     The  testator,  to  re-  ^  Usticke  v.  Bawden,  2  Add.  116;  Med- 

voke  his  will,  must  at  the  same  time  be  Ivcot   v.   Assheton,   Id.    229 ;    Togart    r. 

competent  to  make  a  will,  or  the  act  of  Hooper,  1  Curt.    289.     See  Bates  v.  HoL 

revocatioa  will  be  a  nullity.     Smith   v.  man,  3  Hen.  &  Munf.  502. 


596  LAW   OF  EVIDENCE.  [PART  IV. 

formerly  held,  that  this  revived  and  restored  the  original  will  to 
its  former  position,  provided  it  remained  entire.^  But  this  doo- 
trine  has  since  been  greatly  modified,  if  not  wholly  abandoned,  in 
the  Ecclesiastical  courts,  and  the  question  is  now  held  open  for 
decision  either  way,  according  to  the  circumstances.^ 

§  684.  In  regard  to  implied  revocations,  these  are  said  to  be 
founded  on  the  reasonable  presumption  of  an  alteration  of  the 
testator's  mind,  arising  from  circumstances  since  the  making  of 
the  will,  producing  a  change  in  his  previous  obligations  and 
duties.3  A  subsequent  marriage  alone,  if  the  testator  was  a  feme 
sole,  will  always  have  this  effect,  even  though  she  should  survive 
her  husband ;  for  by  the  marriage  her  will  ceased  to  be  ambula- 
tory, and  was  therefore  void.*  But  the  marriage  of  a  man  is  not, 
alone,  a  revocation  of  his  will ;  for  the  common  law  has  made  suf- 
ficient provision  for  the  wife,  by  her  right  of  dower.  Nor  is  the 
birth  of  a  child  after  the  making  of  the  will,  in  itself,  and  inde- 
pendent of  statutory  provisions,  a  revocation  of  a  will  made  sub- 
seqnent  to  the  marriage;  for  the  testator  is  presumed  to  have 
contemplated  such  an  event.  But  a  subsequent  marriage  and  the 
birth  of  a  child,  taken  together,  are  held  to  be  a  revocation  of  his 
will,  whether  of  real  or  personal  estate,  as  they  amount  to  such  a 
change  in  his  situation  as  to  lead  to  a  presumption  that  he  could 
not  intend  that  the  previous  disposition  of  his  property  should 
remain  unchanged.^      But  this   presumption  is  not  conclusive: 

1  Goodright  v.  Glazier,  4  Burr.  2512;  to  his  first  will,"  or  unless  the  first  is 
Lawson  v.  Morrison,  2  Dall.  289  ;  James     aftenvards  republished. 

r.  Marvin,  3  Conn.  576  ;  Taylor  r.  Taylor,  ^  4  Kent,  Coram.  521-524.     [Revoca- 

2  Nott  &  McCord,  482.  tion  of  a  will  cannot  be  implied  by  law 

2  Usticke  V.  Bawden,  2  Add.  116  ;  from  the  death  of  the  testator's  wife,  and 
James  v.  Cohen,  3  Curt.  770.  See  4  of  one  of  his  children  leaving  issue ;  and 
Kent,  Comm.  531,  and  cases  there  cited;  the  birth  of  another  child  contemplated  in 
and  1  Jarm.  on  Wills,  122,  123,  and  cases  the  will;  and  the  testator's  insanity  for 
in  notes  by  Perkins ;  Moore  v.  Moore,  1  forty  years  from  soon  after  makin;;  the 
Phillim.  375,  400,  406;  Boudinot  ».  Brad-  will  until  his  death  ;  and  a  fourfold  in- 
ford,  2  Dall.  268;  Linginfettcr  v.  Linjiin-  crease  in  the  value  of  his  property,  so  afl 
fetter,  Hardin,  II.  119-,^  Bohanon  v.  Wal-  greatly  to  change  the  proportion  between 
cott,  1  How.  Mis.  R.  336.  By  Stat.  1  the  specific  legacies  given  to  some  children 
Vict.  c.  26,  §  22,  no  will,  once  revoked,  and  the  shares  of  other  children  who  were 
can  be  revived,  otherwise  than  by  a  re-  made  residuary  legatees.  Warner  v 
execution    thereof.     Hence  parol  evidence  Beach,  4  Gray,  162.] 

of  an  intention  to  set  up  the  prior  will  by  *  1  Williams  on  Executors,  pp.  9S-95; 
cancelling  the  second  has  been  rejected.  Forse  &  Hembling's  case,  4  Co.,  20  ;  Hods- 
Major  V.  Williams,  3  Curt.  432.  den  v.  Lloyd,  2  Bro.   Ch.  Cas.   544,  and 

In   Neio    York,  by  Rev.    Stat.  Vol.    2,  notes  by  Eden. 

p.  126,3d  edit.,  "the  destruction,  cancel-  ^  1  Jarm.  on  Wills,  p.  107  ;  1  Williams 

ling,  or   revocation   of  such   second  will  on  Executors,  pp.  95  -  98 ;  Doe  v.  Lanca- 

shiill  not  revive  ttie  first,  unless  it  appear  shire,   5  T.   R.   58.     See  also    Church  v. 

by  the  terms  of  such  revocation,  that  it  Crocker,  3  Mass.   17,  21  ;  Brush  v.   Wil- 

was  bi->  mtention  to  revive  and  give  effect  kins,  4  Johns.  Ch.  R.   506.     A  testator, 


PART  IV.] 


WILLS. 


597 


it  may  be  repelled  by  intrinsic  proof  of  circumstances  showing  that 
the  will,  though  made  previous  to  the  marriage,  was  in  fact  made 
in  contemplation  of  both  marriage  and  the  birth  of  issue ;  ^  such 
as,  a  provision  of  any  sort  in  the  will  itself  for  the  future  wife  and 
children  ;  or  a  provision  for  children  alone  ;^  but  provision  for  the 
wife  only  has  been  held  insufficient.^  Any  other  evidence  of  in- 
tent, to  have  this  effect,  it  seems,  must  amount  to  proof  of  republi- 
cation of  the  will,  after  the  birth  of  the  issue.  For  any  other  pur- 
pose than  this,  parol  evidence  of  the  intentions  of  the  testator, 
that  his  will  should  stand  unrevoked,  has  been  held  inadmissible 
to  control  the  presumption  resulting  from  marriage  and  the  birth 
of  issue.* 


dangerously  ill,  and  unmarried,  made  a 
will  in  favor  oi  his  intended  wife.  Beinj^ 
restored  to  health,  he  married  her,  and  had 
issue  four  children.  The  will  was  care- 
fully preserved  and  recognized  by  him, 
but  never  was  re-executed.  The  wife  and 
children  survived  him;  but  it  was  held, 
that  the  will  was  revoked.  Matson  r. 
Magrath,  13  Jur.  3.")0.     Trerog.  C. 

1  1  Jannan  on  Wills,  pp.  10",  100,  110; 
1  Williams  on  E.xecutors,  p.  94 ;  Vox.  v. 
Marston,  1  Curt.  494.  Antl  see  Johnston 
V.  Johnston,  1  Phillim.  447  ;  Gibbens  v. 
Cross,  2  Add.  455  ;  Talbot  v.  Talbot,  1 
Hagg.  Eccl.  K.  705  ;  Jacks  v.  Henderson, 
1  Desaus.  R.  543,  557  ;  Brush  i^.  NVilkins, 
4  Johns.  Ch.  It.  506  ;  Yerby  r.  Yerby,  3 
Call,  H.  3.34.  The  doctrine"  that  the  pre- 
Bumption  is  not  conclusive  has  been  over- 
ruled, upon  great  consideration,  in  the 
cases  of  Marston  r.  Roe,  8  Ad.  &  El.  14  : 
and  Israel  v.  Rodon,  2  Moore,  P.  C.  R. 
51  ;  in  the  former  of  which  the  following 
points  were  resolved  :  — 

1.  Where  an  unmarried  man  without 
children  by  a  former  marriage  devises  all 
the  estate  he  has  at  the  time  of  making  his 
will,  and  leaves  no  provision  for  any  child 
of  a  future  marriage,  the  law  annexes  to 
such  iciU  the  tacit  condition,  that  if  he  after- 
wards marries,  and  has  a  cliilil  born  of 
euch  marriage,  the  will  shall  be  revoked. 
Upon  the  happening,  therefore,  of  those 
two  events,  the  will  is  ipso  facto  revoked. 

2.  Evidence  not  amounting  to  proof  of 
publication  cannot  be  received  in  a  court 
of  law,  to  show  that  the  testator  intended 
that  his  will  should  stand  good,  notwith- 
standing his  subsequent  marriage  and  the 
birth  of  issue;  because  these  events  operate 
as  a  revocation,  by  force  of  a  rule  of  law, 
and  independent  of  the  testator. 

3.  The  operation  of  this  rule  of  law  is 
not  prevented  by  a  provision  in  the  will,  or 
otherwise,  for  the  future  wife  only :  such 


provision  must  also  extend  to  the  children 
of  the  marriage. 

4.  The  provision  also  must  be  made 
by  the  will ;  the  condition  annexed  to  it 
by  law,  so  far  as  relates  to  the  existence 
or  extent  of  the  provision,  having  refer- 
ence, in  its  own  nature,  to  the  existing 
state  of  things  at  the  time  the  will  itself 
was  made.  And  it  must  give  to  tlie  child 
a  beneticial,  and  not  a  merely  legal,  inter- 
est as  a  trustee. 

Therefore  it  was  held,  that  the  descent 
of  after-acquired  lands  u])on  the  child  did 
not  prevent  the  operation  of  the  rule  of 
revocation  above  stated  ;  especially  as  the 
child,  in  the  case  at  bar,  took  only  a  legal 
estate  in  trust  for  the  devisee.  See  also, 
as  to  the  conclusiveness  of  the  (iresumption, 
Goodtitley.  Otway,  2  II.  Bl.  522,  by  Eyre, 
C.  J. ;  Doe  v.  Lancashire,  5  T.  R.  58,  per 
Ld.  Kenvon ;  Gibbons  v.  Gaunt,  4  Ves. 
848;  Walker  v.  Walker,  2  Curt.  834. 
See  6  Crui-se's  Dig.  tit.  38,  ch.  6,  §  48,  note 
(Greenleaf 's  ed.  1857). 

-  Kenebel  v.  Serafton,  2  East,  530;  I 
Jarman  on  Wills,  p.  109. 

8  Marston  v.  Roe,  8  Ad.  &  El.  14. 

*  Ibid.  In  several  of  the  Unite<l  States, 
the  effect  of  marriage  and  the  birth  of  a 
child,  upon  a  prior  will,  has  been  definitely 
settled  by  statute.  Thus,  in  Rhode  Island, 
a  will  is  ipso  facto  revoked  "  by  a  marriage 
of  the  testator  subsequent  to  the  date  there- 
of." R.  Isl.  Rev.  St.  1844,  p.  231.  la 
Connecticut,  "  If,  after  the  making  of  a 
will,  a  child  shall  be  born  to  the  testator, 
and  no  provision  shall  be  made  in  the  will 
for  such  contingency,  such  birth  shall  oper- 
ate as  a  revocation  of  such  will."  Cona. 
Rev.  St.  1849,  pp.  346,  347. 

In  New  York,  the  enactment  is  more 
particular.  "  If,  after  the  making  of  any 
will,  disposing  of  the  whole  estate  of  the 
testator,  sucii  testator  shall  marry,  and 
have  issue  of  such  marriage,  bora  either 


598 


LAW  OF  EVIDENCE. 


'  PART  IV, 


§  685.  The  rule  that  marriage  and  the  birth  of  issue  operates 
as  a  revocation  of  the  previous  will  is  not  affected  by  the  circum- 
stances, that  the  testator  was  married  at  the  time  of  making  the 
will,  and  survived  his  wife,  and  afterwards  married  again  and  had 
issue  by  the  second  wife;  but  such  second  marriage  and  the 
birth  of  issue  is  equally  a  revocation  of  the  will  as  though  it  had 
been  made  while  he  was  single.  Nor  does  it  make  any  difference 
that  the  issue  was  posthumous ;  nor  that  the  testator  died  without 
knowing  that  his  wife  was  pregnant ;  ^  nor,  that  the  child  died  in 
the  Hfetime  of  the  testator .^ 


in  his  lifetime  or  after  his  death,  and  the 
wife  or  the  issue  of  such  marriage  shall  be 
livinf!  at  the  death  of  the  testator,  such  will 
shall  be  deemed  revoked,  unless  provision 
shall  have  been  made  for  such  issue  by 
some  settlement,  or  unless  such  issue  shall 
be  provided  for  in  the  will,  or  in  such  way- 
mentioned  therein  as  to  show  an  intention 
not  to  make  such  provision,  and  no  other 
evidence  to  rebut  the  presumption  of  such 
revocation  sliall  be  received."  N.  Y.  Rev. 
St.  Vol.  2,  p.  1 24,  §  35,  3d  ed.  In  Arkan- 
sas, Indiana,  and  Missouri,  the  language 
of  tlie  statutes  is  substantially  the  same  as 
in  New  York.  Ark.  Rev.  St.  1837,  cli. 
157,  §  7  ;  Ind.  Rev.  St.  184-3,  ch.  30,  §  8 ; 
Misso.  Rev.  St.  1845,  ch.  185,  §  7. 

In  Pennsylvania,  if  the  testator,  after 
making  his  will,  "  shall  marry  or  have  a 
child  not  provided  for  in  such  will,  and  die 
leaving  a  widow  and  child,  or  either  a 
widow  or  child,  though  such  child  be  born 
after  the  death  of  the  father,  every  such 
person,  so  far  as  shall  I'egard  the  widow  or 
child,  shall  be  deemed  and  construed  to 
die  intestate.  Dunlap's  Dig.  p.  573,  §  15  ; 
Coates  V.  Hughes,  3  Binn.  498 ;  Tomlin- 
son  V.  Tomlinson,  1  Ashm.  224. 

In  Virginia,  if  the  testator,  having  no 
issue  then  living,  shall  make  a  will,  where- 
in any  child  he  may  have  is  not  provided 
for  nor  mentioned,  and  shall  at  his  death 
leave  a  child,  or  leave  his  wife  pregnant  of 
a  child  which  shall  be  born  ;  the  will  "  shall 
have  no  effect  during  the  life  of  such  after- 
born  child,  and  shall  be  void  unless  the  child 
die,  without  having  been  married,  aiid  be- 
fore lie  or  she  shall  have  attained  the  age 
of  twenty-one  years."  Tate's  Dig.  p.  892. 
In  New  Jerscji,  in  the  like  case,  the  will  is 
declared  void  ;  without  reference  either  to 
the  marriage  or  majority  of  the  child. 
N.  Jer.  Rev.  St.  1846,  p.  368,  §  20. 

In  South  Carolina,  a  will  is  revoked  by 
the  subsequent  marriage  of  the  testator,  and 
his  death,  lejivimj  issue.  S.  Car.  Stat,  at 
Large,  Vol.  5,  p.  107  ;  Jacks  i;.  Hender- 
son, 1  Dcsaus.  543,  557. 

In  Georipa,  the  will  is  revoked,  if  the 
jeetator  shall  afterwards  marry  or  have  a 


child  bom  ;  no  provision  being  made  for 
either  wife  or  child  in  the  will,  and  no 
alteration  being  made  in  the  will,  subse- 
quent to  the  marriage  or  birth  of  the  child. 
Geo.  Rev.  St.  1845,  p.  457,  §  16. 

In'  Ohio,  "If  the  testator  had  no  chil- 
dren at  the  time  of  executing  his  will,  but 
shall  afterwards  have  a  child  living,  or  bora 
alive  after  his  death,  such  will  shall  be 
deemed  revoked  "  ;  unless  the  child  shall 
have  been  provided  for  by  some  settlement 
or  in  the  will,  or  so  mentioned  therein  as 
to  show  an  intention  not  to  make  such  pro- 
vision ;  "  and  no  other  evidence  to  rebut 
the  presumption  of  such  revocation  shall 
be  received."  Ohio  Rev.  St.  1841,  ch.  129, 
§40. 

In  Louisiana,  "  the  testament  falls  by  the 
birth  of  legitimate  children  of  the  testator, 
posterior  to  its  date.  Louis.  Civil  Code, 
art.  1698. 

In  all  the  other  States,  this  subject  is  be- 
lieved to  have  been  left  to  the  implication, 
of  law. 

Whether  the  birth  of  a  child  by  the  first 
wife,  after  the  making  of  the  will ;  and, 
after  the  death  of  the  first  wife,  a  second 
marriage,  but  no  more  children,  is  a  revo- 
cation of  the  will, — qiiosre.  See  4  Ves. 
848  ;  Yerby  v.  Yerby,  3  Call,  334  ;  1  Jarra 
on  Wills,  108.  See  6  Cruise's  Dig.  tit.  38, 
ch.  6,  §§  45,  46,  notes  (Greenleaf's  ed. 
1857).  As  to  the  effect  of  marriage  upon 
the  will  of  a.  feme  sole,  see  6  Cruise's  Dig. 
tit.  38,  ch.  2,  §  5,  note.  Id.  ch.  6,  §  57. 
note  (Greenleaf's  ed.  1857). 

1  Cliristopher  v.  Christopher,  Dick.  44.5, 
cited  3  Burr.  2171,  marg.  Id.  2182.  See 
supra,  §  684,  note,  and  cases  there  cited. 
In  Doe  V.  Barford,  4  M.  &  S.  10,  the  will 
was  held  not  revoked,  where  the  testator 
died  leaving  his  wife  pregnant,  of  which 
fact  he  was  ignorant.  But  if,  as  is  now 
settled  by  the  cases  of  Marston  v.  Roe,  and 
Israel  v.  Rodon,  supra,  the  revocation  re- 
sults from  an  imperative  rule  of  law,  and 
not  from  any  supposed  change  of  intention, 
the  propriety  of  that  decision  may  well  be 
questioned. 

^  Wright  V.  Netherwood,  2  Salk.  593. 


PART  IV.J 


WILLS. 


599 


§  686.  Another  case  of  implied  revocation  is  that  which  arises 
from  an  alteration  of  the  estate  of  the  devisor,  after  the  making  of 
the  will ;  it  being  generally  considered  essential  to  the  validity  of 
a  devise  of  lands,  that  the  testator  should  be  seised  thereof  at  the 
making  of  the  will,  and  that  he  should  continue  so  seised  thereof 
until  his  decease.  If,  therefore,  a  testator,  after  making  his  will, 
should  by  deed  aliene  the  lands  which  he  had  disposed  of  by  the 
will,  the  disposition  by  will  thereby  becomes  void  ;  and  should  he 
afterwards  acquire  a  new  freehold  estate  in  the  same  lands,  such 
newly  acquired  estate  will  not  pass  to  the  devisee  under  the  will.^ 
And  though  the  conveyance  be  for  a  partial,  or  a  mistaken  or 
unnecessary  purpose,  yet  if  it  embraces  the  whole  estate  which  is 
the  subject  of  the  devise  or  bequest,  it  is  a  total  revocation.  But 
if  it  is  only  a  conveyance  of  part  of  the  testator's  estate  or  interest, 
as,  for  example,  if,  owning  the  fee,  or  entire  interest,  he  makes  a 
lease  for  years  or  a  mortgage,  or  pledges  the  property,  it  is  only 
a  revocation  pro  tanto,  or  a  gift  by  will,  subject  to  the  lien  thus 


note  (fi)  by  Evans  ;  more  fully  reported  in 
2  Phillim.  266,  note  (f).  See  also  Emer- 
son V.  Bovillc,  1  Phillim.  342.  In  Kn<,'- 
Innil  it  is  now  provided,  by  8tut.  7  W.  4, 
&  1  Vict.  c.  26,  §  18,  that  "  every  will  made 
by  a  iniui  or  woman  shall  be  revoked  by 
his  or  her  marria},'e,"  except  wills  male 
under  powers  of  appointment,  in  certain 
cases  ;  and  that,  "  no  will  shall  be  revoked 
by  any  presumption  of  an  intention  on  the 
ground  of  an  alteration  of  cireumstances." 

1  See  1  Januan  on  Wills,  eh.  7,  §  3, 
pp.  130-148;  2  Williams  on  E.\ecutors, 
Part  :i,  h.  3,  eh.  2.  §  1 ,  pp.  820  -  827.  See 
also  6  Cruise's  Di;;.  tit.  38,  eh.  6  (Green- 
leaf's  ed.),  where  the  subject  of  revocations 
by  an  alteration  of  the  estate  is  more  lar;;e- 
ly  treated.  Walton  v.  Walton,  7  Johns, 
ch.  258. 

After-acquired  lands  also  pass  by  the  will, 
if  such  was  the  intent  of  the  testator,  by 
the  sututes  of  most  of  the  United  States. 
But  such  intent  must  clearly  appear  on  the 
face  of  tlie  will,  by  the  statutes  of  Mnine, 
ifassar/iu.-ietts.  \eu'  Hampshire,  Nfic  York, 
Virginia,  Ohio,  Michigan,  Wisconsin  and 
Kentuckif.  It  is  inferred,  from  the  general 
terms  of  a  devise  of  all  his  estate,  by  the 
statute  of  Pennsylania,  and  Indiana  ;  and 
also  of  Connecticut,  unless  apparently  other- 
wise intended.  In  Vermont,  the  intent 
must  appear  in  the  will,  or  be  found  "  by  a 
proper  construction."  In  Rhode  Island, 
the  lands  pass,  if  such  intent  "  appears  by 
the  express  terras  of  his  will."  In  Illinois 
and  Alisslssippi  the  statutes  empower  the 
testator  to  devise  all  the  estate  which  he 


has  "  or  may  have  at  the  time  of  his  death  " ; 
which  seems  imperatively  to  include  after- 
acquired  lands,  if  not  excluded  by  the 
terms  of  the  will.  Sec  Maine  Rev.  St. 
1840,  ch.  92,  §  13;  Ma.ss.  Uev.  St.  1836, 
ch.  62,  §  3  ;  Cushing  f.  Aylwin,  12  Met. 
169;  Pray  v.  Waterston,  Id.  662;  Win- 
chester v.  Foster,  3  Cush.  366  ;  New  Ilamp. 
Kcv.  St.  1842,  eh.  1.56,  §  2;  Verm.  Uev. 
St.  1839,  ch.  4.'J,§  2;  H.  M.  Kcv.  St.  1844, 
p.  231  ;  Coim.  Rev  St.  1848,  tit.  14.  di.  I, 
§4;  Brewster  r.  McCall,  15  Conn.  290. 
N.  York  Rev.  St.  Vol.  2,  p.  119;  Duulop's 
Dig.  LL.  Pa.  p.  572  ;  Tates's  Dig.  LL.  Va. 
p.  889  ;  1  Wash.  75  ;  8  Cranch,  69,  70 ; 
Ohio  Rev.  St.  1841,  ch.  129,  §  48;  Mich. 
Rev.  St.  1846,  ch.  68,  §  3  ;  LL.  Ky.  Vol. 
2,  p.  1537,  §  1  ;  Roberts  v.  Elliott,  3  Monr. 
396  ;  Robertson  i'.  Barber,  6  Monr.  524 ; 
Ind.  Rev.  St.  1843,  ch.  30,  §  4  ;  111.  Rev.  St. 
1839,  p.  686.  §  1  ;  Mis.  Rev.  St.  1840,  ch. 
36,  §  2;  Wisconsin  Kcv.  St.  1849,  ch.  66, 
§  3  ;  Iowa  Kev.  St.  1851,  §  1278.  See  also 
Allen  V.  Harrison,  3  Call,  289  ;  Walton  v. 
Walton,  7  J.  J.  Marsh.  58  ;  Denis  v.  War- 
der, 3  B.  Monr.  173;  Smithy.  Jones, 4  Ohio, 
R.  115;  Willis  y.  Watson,  4  Scam.  64; 
4   Kent,    Coram.  511  -513. 

In  the  absence  of  any  statute,  lands  pur- 
chased after  the  date  of  a  devise  will  past 
bv  a  codicil  made  after  their  purchase ;  the 
codicil  containing  no  expressions  limiting 
the  effect  of  the  devise  to  lands  comprised 
in  the  will.  Yamold  v.  Wallis,  4  Y.  &  a 
160.  And  see  Bridge  v.  Yates,  14  Law 
Joum.  N.  S.  426. 


600  LAW   OF  EVIDENCE.  [PAET  IV 

created.^  But  a  subsequent  partition  of  lands  held  in  common 
at  the  time  of  making  the  will  is  no  revocation ;  as  it  does  not 
affect  the  nature  or  quantity  of  the  estate,  but  only  the  manner 
of  enjoyment.^  Nor  will  an  interruption  of  the  testator's  seisin 
work  a  revocation  of  the  will,  where  it  is  involuntary  and  tempo- 
rary ;  for  if  he  be  disseised  subsequently  to  making  the  will,  and 
afterwards  re-enters,  he  is  restored  to  his  original  seisin,  by  rela- 
tioi:  back,  and  the  devise  is  not  revoked.^ 

§  687.  Even  a  void  conveyance  may  sometimes  operate  as  a 
revocation  of  a  previous  devise,  on  the  principle  that  it  is 
inconsistent  with  the  testamentary  disposition.*  This  rule  is  ap- 
plied to  cases  where  the  failure  of  the  conveyance  arises  from  the 
incapacity  of  the  grantee,  as  where  the  husband  conveys  by  deed 
directly  to  his  wife  lands  which  he  had  previously  devised  to 
another ;  ^  and  also  to  cases  where  the  conveyance  is  inopera- 
tive for  the  want  of  some  ceremony  essential  to  its  validity,  as 
where  it  is  by  feoffment,  but  there  is  no  livery  of  seisin.^  But 
the  rule  does  not  apply  to  a  conveyance  which  is  void  at  law 
on  account  of  fraud  or  covin ;  yet  if  the  deed  is  valid  in  law, 
but  impeachable  in  equity,  it  will  be  held  in  equity  as  a  revoca- 
tion.'^ 

§  688.  The  formal  proof  of  a  will  may  also  be  rebutted,  by  evi- 
dence showing  tliat  it  was  obtained  by  fraud  and  imposition  prac- 
tised upon  the  testator,  or,  by  duress  ;  or,  that  the  testator  was 
not  of  competent  age ;  or,  was  a  feme  covert ;  or,  was  not  of  sound 
and  disposing  mind  and  memory  ;  or,  that  it  was  obtained  by  undue 
influence.  But  it  is  said  that  undue  influence  is  not  that  which 
is  obtained  by  modest  persuasion,  or  by  arguments  addressed 
to  the  understanding,  -or  by  mere  appeals  to  the  affections ;  it 
must  be  an  influence  obtained  either  by  flattery,  excessive  impor- 
tunity, or  threats,  or  in  some  other  mode  by  which  a  dominion  is 
acquired  over  the  will  of  the  testator,  destroying  his  free  agency, 

1  4  Kent's  Comra.  511,  512  ;  Brydges  v.  tator  may  devise  lands  of  which  he  is  dis- 

Duchess  of  Chandos,  2  Ves.  417,  427,  428  ;  seised  at  the  time.     Hume  v.   McFarlane, 

Carter  v.  Thomas,  4  Grecnl.  341.  4  S.  &  R.  435. 

^  1  Jarman  on  Wills,  134,  235,  Perkins's         *  1    Jarman   on   Wills,   pp.    149,    152; 

edit. ;  Risley  ».  Boltinglass,  T.  Raym.  240 ;  Walton    v.    Walton,    7    Johns,   eh.   269; 

Brydges  v.  Duchess  of  Chandos,  2  Ves.  Hodges  v.  Green,  4  liuss.  28. 
417,  429.  5  Beard  v.  Beard,  3  Atk  72,  73. 

^  1  Jarman  on  Wills,  p.  133  ;  Goodtitler.         ^  Ibid ;  1  Jarman  on  Wills,  p.  150. 
Otwav,  1  B.  &  P.  576,  602  ;  2  H.  Bl.  516,         T  Simpson  v.  Walker,  5  Simons,  R.  1  • 

S.  C. ;  Cave  v.  Holford,  3  Ves.  650,  670 ;  Hawes  v.  Wyatt,  2  Cox,  R.  263,  per  Ld. 

Attorney-General  v.  Vigor,   8    Ves.  256,  Alvanley,  M.  R.     And  see  S.  C.  in  3  Bro 

282.     In  Pennsylvania,  it  seems  that  a  tes-  Ch.  R.  156,  and  notes  by  Pji-kins. 


PART  IV.] 


WILLS. 


601 


and  constraining  him  to  do,  against  his  free  will,  what  he  is  unable 
to  refuse.^ 

§  688  a.  If  the  will  is  proved  to  he  lost,  it  may  still  be  admitted 
to  probate,  upon  secondary  evidence,  as  in  the  case  of  lost  deeds 
and  other  writings.^  And  though,  as  we  have  seen,^  if  the  will, 
shown  once  to  have  existed,  cannot  be  found  after  the  death  of 
the  testator,  the  presumption  is  that  he  destroyed  it  aiiimo  revo- 
candi,  yet  this  presumption  may  be  rebutted  by  evidence.  But 
if  it  be  so  rebutted,  yet  the  contents  of  the  will  cannot  be  proved, 
unless  by  the  clearest  and  most  stringent  evidence.* 

§  689.  In  regard  to  insanity  or  want  of  sufficient  soundness  of 
mind,  we  have  heretofore  seen,  that  though  in  the  probate  of 
a  will,  as  the  real  issue  is  whether  there  is  a  valid  will  or  not,  the 
executor  is  considered  as  holding  the  affirmative,^  and  there- 
fore may  seem  bound  affirmatively  to  prove  the  sanity  of  the 
testator;  yet  we  have  also  seen,  that  the  law  itself  presumes 
every  man  to  be  of  sane  mind,  until  the  contrary  is  shown.^     The 


1  Marshall's  case,  2  Barr,  388.     And 
6ce   Dufficld  V.  Morris,  2    Harringt.  375 ; 
O'Neall  v.  Farr,  I  Rich.  80 ;  Lide  i'.  Lide, 
2  Brev.  403  ;  Harrison's  case,   1   B.  Mon- 
roe, 351  ;  Brown  v.  Moore,  6  Yerg.   272. 
Where  the  testator  is  left  free  from  undue 
influence,  and  nt  liberty  to  act  upon  his 
own  perceptions,  less  mind   is   ordinarily 
requisite  tu  make  a  will  than  to  make  a 
contract  of  sale.    But  mere  passice  memory 
is  not  alone  sufficient.     He  must  retain  suf- 
ficient actire  memory  to  collect  in  his  mind, 
without  prompting,  the  particulars  or  ele- 
ments of  the   business  to   be   transacted, 
and  to  hold  them  in  his  mind  long  enough 
to  perceive  at  least  their  more  obvious  re- 
lations to  each  other,  and  to  form  a  rational 
judgment   in   regard  to   them.     The   ele- 
ments of  such  a  judgment  should  be,  the 
number  of  his  ciiildren,  their  deserts  with 
reference  to  conduct  and  capacity,  as  well 
as  need,  and  wliat  he  had  done  for  them  in 
the  way  of  advancement,  the  amount  and 
condition   of  his   property,  and    tlie   like. 
See  Converse  v.  Converse,  Sup.  Court,  Vt. 
849.     2  Law  Rep.  516,  N.  S.  per  Redfield, 
J.  ;  6  Washb.  168,  S.  C.  ;  [Zimmerman  i;. 
Zimmerman,  23  Penn.  State  R.  375  ;  Hosh- 
auer  v.  Hoshauer,  26  lb.  404  ;  McMalion  v. 
Evan,  20  lb.  329  ;  Parramore  v.  Taylor,  11 
Gratt.  (Va.)220;   Roberts  v.  Trawick,  17 
Ala.  55;  Coleman  r.  Robertson,    lb.   84; 
Walker  v.  Hunter,  17  Geo.  364  ;  Nailing  i'. 
Kailing,  2  Sneed  (Tenn.),  6.30;  Minor  u. 
Thomas,  12  B.   Monroe,   106;    Taylor  v. 
Wilburn,  20  Mis.  306  ;  Stultz  v.  Schaeffle, 
18  Eng.  Law  &  Eq.  576.]     [*  We  think  it 


obvious  from  the  cases,  that  the  influence 
to  avoid  a  will  must  be  such  as  :  1.  To  de- 
stroy the  freedom  of  the  testator's  will,  and 
thus  render  his  act  obviously  more  the  off- 
spring of  the  will  of  others  than  of  his 
own.  2.  That  it  must  be  an  influence 
specially  directed  towards  the  object  of  pro- 
curing a  will  in  favor  of  particular  parties. 
3.  If  any  degree  of  free  agency,  or  capacity, 
remained  in  the  testator,  so  that,  when  left 
to  himself,  he  was  capable  of  making  a 
valid  will,  then  tiie  influence  which  so  con- 
trols iiim  as  to  render  his  making  a  will  of 
no  effect  must  be  such  as  was  intended  to 
mislead  him  to  the  extent  of  making  a  will 
essentially  contrary  to  his  duty,  and  it  must 
have  proved  successful  to  some  extent, 
certainly.  Redfield  on  Wills,  Pt.  L  497  - 
537.] 

2  See  ante,  Vol.  1 ,  §§  84, 509,  575 ;  Keams 
v.  Kearns,  4  Harringt.  83.  [*  Redfield  on 
Wills,  Pt.  I.  349  -  357  ;  Everitt  v.  Everitt, 
41  Barb.  385  ;  Youndt  i-.  Youndt,  3  Grant's 
Cas.  140.] 

8  See  supra,  §  681. 

♦  Davis  V.  Sigournev,  8  Met.  487  ;  Da- 
vis V.  Davis,  2  Addam's,  223  ;  Thornton's 
case,  2  Curt.  913  ;  Bctts  v.  Jackson,  6 
Wend.  173  ;  Clark  i-.  Wright,  3  Pick.  67; 
1  Jarman  on  Wills,  119,  by  Perkins;  Hu- 
ble  V.  Clark,  1  Ilagg.  Eccl.  R.  115  ;  Steele 
V.  Price,  5  B.  Monroe,  58  ;  [Rhodes  v.  Vin- 
son, 9  Gill,  169;  Batton  v.  Watson,  13 
Geo.  63.] 

6  Ante,  Yol.  1,  §  77. 

8  Ante,  Vol.  1,  §  42  ;  Supra,  tit  Insak« 
ITT,  §  373  ;  Brooks  v.  Barrett,  7  Pick,  94 


6G2 


LAW   OF  EVIDENCE. 


[part  IV 


burden  of  proving  unsoundness  or  imbecility  of  mind  in  the 
testator  is  therefore  on  the  party  impeaching  the  validity  of 
the  will  for  this  cause.  But,  as  has  also  been  shown ,^  insanity 
or  imbecility  of  mind,  once  proved  to  have  existed,  is  presumed 
to  continue,  unless  it  was  accidental  or  temporary  in  its  nature, 
as,  where  it  was  occasioned  by  the  violence  of  disease.  And,  on 
the  other  hand,  the  proof  of  insanity  at  the  time  of  the  transaction 
may  be  rebutted  by  evidence  that  the  act  was  done  during  a 
lucid  interval  of  reason,  the  burden  of  proving  which  is  devolved 
on  the  party  asserting  this  exception  .^ 

§  690.  In  i\\Q  proof  of  insanity ,  though  the  evidence  must  relate 
to  the  time  of  the  act  in  question,^  yet  evidence  of  insanity  immedi- 
ately before  or  after  the  time  is  admissible.'*  Suicide,  committed 
by  the  testator  soon  after  making  his  will,  is  admissible  as  evidence 
of  insanity,  but  it  is  not  conclusive.^  The  fact  of  his  being  under 
guardianship  at  the  time  falls  under  the  same  rule  ;  being  prima 
facie  evidence  of  incapacity,  but  open  to  explanation  by  other 
proof.^    It  may  here  be  added,  that  where  a  devisee  or  legatee  is 


IDean  v.  Dean,  1  Williams  (Vt.)  746  ; 
Trumbull  v.  Gibbons,  2  New  Jersey,  117  ; 
Zimmerman  v.  Zimmerman,  23  Penn. 
State  R.  375;  Hawkins  v.  Grimes,  13 
B.  Monroe,  257.  But  see,  contra,  Crown- 
inshield  v.  Crowninshield,  2  Gray,  524, 
534,  in  which  the  decision  in  the  case  of 
Brooks  V.  Barrett  is  explained  and  quali- 
fied. Cilley  V.  Cillev,  34  Maine,  162  ;  Per- 
kins V.  Perkins,  39  N.  H.  163.]  [*  See  Bax- 
ter V.  Abbott,  7  Gray,  7 1 ,  where  it  is  held 
that  upon  the  trial  of  an  issue  of  the  sanity 
of  the  testator,  upon  an  appeal  from  the  de- 
cree of  the  jjrobate  court  allowin*^  a  will,  in 
the  absence  of  evidence  to  the  contrary,  the 
leojal  presumption  is  in  favor  of  such  sanity. 
We  believe  this  view  is  that  which  has  com- 
monly prevailed  in  the  American  courts. 
See  Redfield  on  Wills,  Pt.  I.  30  -  50,  where 
this  subject  is  considered,  and  the  cases 
fully  di.-cussed  do\vn  to  the  present  time.] 
1  Supra,  tit.  Insanity,  §371.  And  see 
Vol.  1,  §  42.  Evidence  of  prior  bodily 
disease,  and  of  different  intentions,  previ- 
ously expressed,  has  been  held  admissible 
in  proof  of  incajjacity  at  the  time  of  mak- 
ing; the  will.  Irish  v.  Smith,  8  S.  &  R. 
573.  But  vwral  insanity,  or  the  perversion 
of  the  moral  feelings,  not  accompanied 
with  insane  delusion,  which  is  the  lefjol 
test  of  insanity,  is  held  insufficient  to  in- 
validate a  will.  Frcre  v.  Peacocke,  1  Rob, 
Eccl.  R.  442;  [.Jenckes  v.  Smithfield,  2  R. 
I.  255;  Stanton  v.  Weathcrwax,  16  Barb. 
259;  riorey  v.  Florey,  24  Ala.  241.    Al- 


though the  testator  entertains  exaggerated 
and  absurd  opinions  on  certain  subjects, 
this  is  not  sufficient  evidence  of  insanity  to 
justify  the  setting  aside  of  his  will,  if  it 
also  appear  that  he  has  the  use  of  his  fac 
ulties,  and  the  will  itself  indicates  that  he 
was  in  the  possession  of  his  reasoning  pow- 
ers at  the  time  of  making  the  will.  Thomp- 
son V.  Thompson,  21  Barb.  107;  New 
house  V.  Godwin,  1 7  lb.  236  ;  Trumbull  v. 
Gibbons,  2  New  Jersey,  117;  Denton  v, 
Franklin,  9  B.  Mon.  28 ;  Austen  v.  Gra- 
ham, 29  Eng.  Law  and  Eq.  38.  A  belief 
in  witchcraft  is  not  evidence  of  such  insan- 
ity as  would  disable  a  person  from  making 
a  will.  Addington  v.  Wilson,  5  Ind.  (Por 
ter)  137.]  [*  See  Redfield  on  Wills,  Pt. 
I.  66-118.] 

-  Attorney  -  Gen.  v.  Parnther,  3  Bro. 
Ch.  R.  441;  Ex  parte  Holyiand,  11  Ves. 
11;  White  v.  Wilson,  13  Ves.  87;  Cart- 
wright  V.  Cartwright,  1  Phillim.  R.  100. 
And  see  1  Williams  on  Executors,  pp.  17  - 
30 ;  1  Jarman  on  Wills,  ch.  3 ;  Ray's 
Medical  Jurisprndence  of  Insanity,  ch.  14, 
§§  230  -  246  ;  [Bannatyne  v.  Bannatyne, 
14  Eng.  Law  and  Eq.  581.] 

8  Attorney-Gen.  v.  Parnther,  3  Bro.  Ch. 
R.  441,  443 ;  White  v.  Wilson,  13  Ves. 
87. 

*  Dickinson  i'.  Barber,  9  Mass.  225. 

^  Brooks  V.  Barrett,  7  Pick.  94. 

^  Stone  V.  Damon,  12  Ma.ss.  488 ;  Breed 
V.  Pratt,  18  Pick.  115. 


PART  IV.]  WILLS.  603 

party  in  a  suit  touching  the  validity  of  a  will,  his  declarations  and 
admissions  in  disparagement  of  the  will  are  competent  to  be  given  in 
evidence  against  him  ;  but  if  he  is  not  a  party  to  the  record,  nor 
party  in  interest,  it  is  otherwise.^  So  the  declaration  of  his  opinion 
in  favor  of  the  sanity  of  the  testator  is  admissible  against  a  party 
opposing  the  probate  of  the  will  on  the  ground  of  his  insanity.-  The 
didarations  of  the  testator  himself  are  admissible  only  when  they 
were  made  so  near  the  time  of  the  execution  of  the  will  as  to  be- 
come a  part  of  the  res  gestoe.^ 

§  691.  The  attesting  witnesses  are  regarded  in  the  law  as  per- 
sons placed  round  the  testator,  in  order  that  no  fraud  may  be 
practised  upon  him  in  the  execution  of  the  will,  and  to  judge  of 
liis  capacity.  They  must,  therefore,  be  competent  witnesses  at 
the  time  of  attestation ;  otherwise  the  will  is  not  well  executed.* 
On  this  ground,  these  witnesses  are  permitted  to  testify  as  to  the 
opinions  they  formed  of  the  testator's  capacity  at  the  time  of  exe- 
cuting his  will ;  though  the  opinions  of  other  persons  are  ordinarily 
inadmissible,  at  least  unless  founded  upon  facts  testified  by  them- 
selves or  others  in  the  cause.^  [*  But  in  a  later  case  than  Anstey 
V.  Dowsing,^  it  is  expressly  decided,  that  a  witness  to  a  will,  who 
is  a  legatee  under  it,  may  become  competent  to  prove  the  same 

1  Atkins  i\  Siinser,  1  Pick.  192;  Phelps  will,  he  received  to  affect  its  construction. 
V.  Ilartwell.  I  Ma"s.  71  ;  Hovard  i-.  Wal-  Redfield  on  Wills,  Ft.  I,  5.39,  and  cases 
lace,  4  S.  &  11.499;  Nusscar  r.  Arnold,  cited.  Sec  also  same,  538  -  .572,  for  a  full 
13  S.  &  R.  323,  323,  329.  discussion  of  the  law  as  to  admissibility  of 

2  Ware  v.  Ware,  8  Groenl.  42 ;  Atkins  testator's  declarations.] 

V.  San},'er,  1  Pick.  192.  But  declarations  *  Such  wa^  tlic  opinion  of  Lord  Cara- 
bv  a  devisee,  that  he  procured  the  devise  to  den,  which  he  maintained  in  an  energetic 
be  made,  are  not  admissible  for  this  pur-  protest  against  that  of  a  majority  of  the 
pose ;  it  not  iK^ing  unlawful  so  to  do,  pro-  Court,  in  Doe  d.  Hindson  c.  Hersey,  re- 
vided  there  were  no  fraud,  imposition,  or  ported  in  4  Burn,  Eccl.  L.  88,  and  in  a 
excessive  imjjortunitv.  Miller  i,'.  Miller,  note  to  Cornwell  v.  Lsiiam,  1  Day,  li.  41  - 
8  S.  &  H.  267  ;  Davis  v.  Calvert,  5  Gill  &  88.  His  opinion  is  now  acquiesced  in  as 
Johns.  263.  the  true  exposition  of  the  Statute  of  Wilis. 
8  Smith  V.  Fenner,  1  Gall.  R.  170.  See  Sec  Borgrave  v.  Winder,  2  Ves.  634,  630  ; 
also,  as  to  declarations  of  testators,  Den  Ainory  v.  Fellows,  5  Mass.  219,  229; 
V.  Vaiicleve,  2  South.  589;  Heel  v.  Reel,  Sears'u.  Dillingham,  12  Mass.  358,  361  ; 
1  Hawks,  248;  Farrar  i-.  Ayers,  5  Pick.  Anstev  i'.  Dowsing,  2  Stra.  1253,  1255; 
4U4;  Wads  worth  i-.  Ruggles,' 6  Pick.  63;  Ante,  Vol.  1,  §§  3.33,  353,440;  1  Jarman 
Rambler  v.  Trvon,  7  S.'&  R.  90;  Betts  v.  on  Wills,  pp.  63,  64,  66. 
Ja(k>on.  6  Wend  173.  [»  It  is  certain  ^  Ante,  Vol.  I,  §  440,  and  cases  there 
such  testimony  is  not  admissible  for  the  cited  ;  Hathorn  v.  King,  8  Mass.  371  ; 
purpose  of  proving  any  distinct  fact,  de-  Dickinson  r.  Barber, 9  Mass.  225.  [♦Red- 
pending  upon  the  force  of  the  admission,  field  on  Wills,  Pt.  L  140.] 
since  the  testator  is  not  a  party  to  the  ^  [*  Lowe  v.  Joliffe,  1  W.  Black.  365. 
question  of  the  validity  or  interpretation  Some  of  the  late  American  cases  adhere 
of  bis  will.  Comstock  v.  Iladlyme,  8  to  the  rule  as  laid  down  by  our  author. 
Conn  234.  Nor  can  such  declarations,  Patten  i-.  Tallman,  27  Me.  17;  Warren  v. 
whether  made  before,  contemporaneously  Baxter,  48  lb.  193. 
with,  or  subsequent  to,  the  making  of  the 


g04  LAW   OF  EVIDENCE.  [PART  IV. 

by  releasing  such  legacy.  But  these  cases  gave'  rise  to  the  Eng- 
lish statute  (25  Geo.  2,  ch.  6)  which  provided  that  if  any  per 
son  should  attest  any  will  or  codicil,  to  whom  any  beneficial  de- 
vise, legacy,  &c.  was  given,  such  interest  or  estate,  as  to  the  per- 
son attesting  the  will  only,  or  any  one  claiming  under  him,  should 
be  absolutely  void,  and  such  person  should  be  admitted  as  a  wit- 
ness ;  and  creditors,  whose  debts  are  charged  on  real  estate,  are  by 
the  same  statute  also  made  competent.  A  similar  statute  exists  in 
many  of  the  American  States.  Under  this  statute  it  has  been  de- 
cided, that  its  provisions  do  not  extend  to  an  executor  or  devisee 
in  trust.^  The  operation  of  the  statute  is  so  sweeping,  that  it 
seems  it  will  render  void  any  beneficial  interest  of  any  one  under 
the  will,  who  is  a  witness,  although  there  may  be  other  witnesses, 
sufficient  in  number  to  meet  the  requirements  of  the  statute.^  An 
interest  in  the  wife,  as  it  seems,  will  disqualify  the  husband  as  a 
witness,  to  the  extent  of  the  wife's  interest.^] 

§  692.  The  foregoing  requisites  to  the  formal  execution  of  a 
valid  will  are  all  demanded,  whenever  the  instrument  is  to  be 
proved  in  the  more  ample  or  solemn  form  ;  and  this  mode  of  proof, 
as  we  have  before  intimated,  is  now  generally  required  in  the 
United  States,  the  probate  of  the  will  being  ordinarily  held  con- 
clusive in  the  common-law  courts,  for  reasons  already  given.  And 
this  amount  of  proof  by  all  the  attesting  witnesses,  if  they  can  bo 
had,  may  be  demanded  by  any  person  interested  in  the  will.^ 

§  693.  Upon  the  trial  of  an  issue  of  devisavit  vel  non,  or  other 
issue  of  title  to  lands,  in  the  courts  of  common  law,  in  those  States 
in  which  the  probate  of  the  will  is  not  regarded  as  conclusive  in 
respect  to  lands,  it  is  necessary,  in  the  first  place,  to  produce  the 
original  will,  or  to  prove  its  former  existence  and  its  subsequent 
loss,  in  order  to  let  in  the  secondary  evidence  of  its  contents.^ 

1  Lowe  V.   Joliffc,    I    W.    Black.   365  ;  in  a  court  of  common  law.     Sliumway  v 

Fountain  y.  Coke,  1  Mod.  107:  Goodtitle  Holbrook,  1  Pick.  114;  Laughton  v.  Ai 

r.Wclford,  Doug.  139;  Phipps  t;.  Pitcher,  6  kins,  Id.  535,  549.     And  for  this  purpose. 

Taunt.  220.  it   may   be   admitted    to   probate,   though 

-  Doe  d.  V.  Wills,  1  Moody  &  Rob.  288 ;  more  than  twenty  years  have  elapsed  since 

Wigan  V.  Rowland,  11  Hare,  157.  the  death  of  the  testator.     Ibid. 

8  Hatfield  y.  Thorp,  5  B.  &  Aid.  589.         &  Seea«te,  Vol.  1,  §  557-563,  569 -575; 

Sec,  on  this  general  subject,  Kedtield  ou  Id.  §  84,  note.     The  nature  and  effect  of 

"Wills,  I't.  I.  254-256.]  probate  in  general  has  already  been   con- 

*  See  1  Williams  on  Executors,  pp.  192-  sidered.     See  ante,   Vol.    1,   §§  518,  550. 

200.     Sears  y.  Dillingham,  12  Mass.  358;  Also  .si//)?-a,  §  315.     The  issue  of  c/emaw^ 

Chase  v.  Lincoln,  3  Mass.  236.     In  Mas-  vel  non  involves  only  the  question  of  the 

tachuse.tts,  a  will   devising   land   must  be  valid  execution  of  the  will,  and  not  of  its 

proved  and  allowed  in  the  Probate  Court,  contents.     Patterson  v.  Patterson,  6  S.  & 

uefore  it  can  be  used  as  evidence  of  title  R.  55.     In  North  and  South  Carolina,  the 


PART  IV.]  WILLS.  605 

And  for  this  purpose  the  probate  of  the  will,  or  an  exemplifica- 
tion, is  not  received  as  evidence,  without  proof,  aliunde,  that  it  is  a 
true  copy.^ 

§  694.  It  is  ordinarily  held  sufficient,  in  the  courts  of  common 
law,  to  call  one  only  of  the  suhserihing  ivitnesses,  if  he  can  speak  to 
all  the  circumstances  of  the  attestation  ;  and  it  is  considered  in- 
dispensable that  he  should  be  able,  alone,  to  prove  the  perfect  exe- 
cution of  the  will,  in  order  to  dispense  with  the  testimony  of  the 
other  witnesses,  if  they  are  alive,  and  within  the  jurisdiction.^ 
[*  It  seems  to  be  conceded  on  all  hands,  that  where  the  subscrib- 
ing witnesses,  one  or  more,  are  disqualified  from  giving  testi- 
mony, subsequent  to  the  time  of  attestation,  or  have  deceased,  or 
removed  beyond  the  jurisdiction  of  the  court,  so  that  their  testi- 
mony cannot  be  had,  the  will  may  be  established  by  proving  the 
handwriting  of  the  witnesses  and  of  the  testator  ;  and  some  au- 
thorities say,  by  proving  that  of  the  witnesses  alone,  —  although 
it  would  seem,  that  where  the  execution  of  such  an  instrument  as 
a  will  requiring  such  formalities  is  attempted  to  be  established  by 
circumstantial  evidence,  it  could  not  fail  to  strike  all  minds,  that 
prpof  of  the  signature  of  the  testator  would  be  essential.^]  But  in 
chancery,  a  distinction  is  taken,  in  principle,  between  a  suit  by  a 
devisee,  to  establish  the  will  against  the  heir,  and  a  bill  by  the 
heir  at  law,  to  set  aside  the  will  for  fraud,  and  to  have  it  delivered 
up.  For,  in  the  former  case,  a  decree  in  favor  of  the  will  is  final 
and  conclusive  against  the  heir ;  but  in  the  latter,  after  a  decree 
against  him,  dismissing  the  bill,  his  remedies  at  law  are  still  left 
open  to  him.  It  is  therefore  held  incumbent  on  the  devisee, 
whenever  he  sues  to  establish  the  will  against  the  heir,  to  produce 
all  the  subscribing  witnesses,  if  they  may  be  had,  that  the  heir 

probate  of  the  will  is  by  statute  made  suflS-  witness  must  separately  depose  to  all  facts 

cient  evidence  of  a  de^-ise.     N.  Car.  Stat,  necessary   to  complete   the  chain  of  evi- 

1837,  ch.  122,  §  9.    S.  Car.  Stat,  at  Largo,  dence,  so  that  no  link  may  depend  on  the 

vol.  6   p.  209.  credibility  of  but  one.     Lewis  v.  Maris,  I 

1  Doe  V.  Calvert,  2  Campb.  389 ;  Bull.  Dall.  278  ;  Hock  v.  Hock,  4   S.  &  R.  47. 

N.  P.  246.  And  if  there  arc  three  witnesses,  and  the 

*  Lon<,'ford  v.  Evre,  1  P.  "Wms.  741;  proof  is  fully  made  by  two  only,  it  is 
Bull.  N.  V.  264 ;  Jackson  v.  LeGrange,  enough,  without  calling  the  third.  Jack- 
10  Johns.  386;  Dan  v.  Brown,  4  Cowen,  son  v.  Vandyke,  1  Coxe,  R.  28;  Fox  v. 
R.  483  ;  Jackson  v.  Vickory,  1  Wend.  Evans,  3  Yeates,  506.  But  if  one  or  both 
406  ;  Jackson  v.  Betts,  6  Cowen,  R.  377  ;  witnesses  are  dead,  the  will  may  be  proved 
Tumipseed  v.  Hawkins,  1  McCord,  272.  by  the  usual  secondary  evidence.  Miller 
In  Pennsi/h-ania,  two  witnesses  are  re-  u.  Carothers,  6  S.  &  R.  215. 
quired  in  proof  of  every  testamentary  »  r»  gee  2  Redfield  on  Wills,  26  -  42 ; 
writing,  whether  in  the  general  probate  also  Dean  v.  Dean,  27  Vt.  746,  where  the 
before  the  register  of  wills,  or  upon  the  authorities  are  discussed  somewhat  in  de- 
trial  of  an  issue  at  common  law ;  and  each  tail  by  Mr.  Justice  Isham.] 


606 


LAW   OF   EVIDENCE. 


[part  IV. 


may  have  an  opportunity  of  cross-examining  them ;  but  where 
the  heir  sues  to  set  aside  the  will,  this  degree  of  strictness  may, 
under  circumstances,  be  dispensed  with,  on  the  part  of  the  dev- 
isee.* 

1  Bootle  V.  Blundell,  19  Vcs.  494  ;  Tat- 
ham  V.  Wright,  2  Russ.  &  My.  I.  In  the 
latter  case,  Avhich  was  a  bill  by  the  heir  to 
Bet  asiilc  the  will,  the  rule  was  expounded 
by  Tiudal,  C.  J.,  in  the  followino;  terms  : 
"  It  mny  be  taken  to  be  generally  true, 
that  in  cases  where  the  devisee  files  a  bill 
to  set  up  and  establish  the  will,  and  an  is- 
sue is  directed  by  the  court  upon  the 
question  devisavit  vel  non,  this  court  will 
not  decree  tlie  establishment  of  the  will, 
unless  the  devisee  has  called  all  the  sub- 
scribing witnesses  to  the  will,  or  accounted 
for  their  absence.  And  there  is  good  rea- 
son for  such  a  general  rule.  For  as  a  de- 
cree in  support  of  the  will  is  final  and  con- 
clusive against  the  heir,  against  whom  an 
injunction  would  be  granted  if  he  should 
proceed  to  disturb  the  possession  after  the 
decree,  it  is  but  reasonable  that  he  should 
have  the  opportunity  of  cross-examining 
all  the  witnesses  to  the  will,  before  his 
right  of  trying  the  title  of  the  devisee  is 
taken  from  him.  In  that  case,  it  is  the 
devisee  who  asks  for  the  interference  of 
this  court,  and  he  ought  not  to  obtain  it 
until  he  has  given  every  opportunity  to 
the  heir  at  law  to  dispute  the  validity  of 
the  will.  This  is  the  ground  upon  which 
the  practice  is  put  in  the  cases  of  Ogle  v. 
Cook  (I  Vez.  178),  and  Townsend  v.  Ives 
(1  Wils.  216).  But  it  appears  clearly  from 
the  whole  of  the  reasoning  of  the  Lord 
Chancellor  in  the  case  of  Bootle  v.  Blun- 
dell (1  Mer.  193;  Cooper,  136),  that  this 
rule,  as  a  general  rule,  applies  only  to  the 
case  of  a  bill  filed  to  establish  the  will 
{an  estahlishinfj  bill,  as  Lord  Eldon  calls  it 
in  one  part  of  his  judgment),  and  an  issue 
directed  by  the  court  upon  that  bill.  And 
even  in  cases  to  which  the  rule  generally 
applies,  this  court,  it  would  seem,  under 
particular  circumstances,  may  dispense 
with  the  necessity  of  the  three  witnesses 
being  called  by  the  plaintiff  in  the  issue. 
For  in  Lowe  v.  Jolitte  (1  W.  Black.  365), 
where  the  bill  was  filed  by  the  devisee 
under  the  Avill,  and  an  issue  demsamt  vel 
non  was  tried  at  bar,  it  appears  fi-om  the 
report  of  the  case,  that  the  subscribing 
witnesses  to  the  will  and  codicil,  who 
swore  that  the  testator  was  utterly  inca- 
pable of  making  a  will,  were  called  by 
the  defendant  in  the  issue,  and  not  by  the 
plaintiif;  for  the  reporter  says,  'to  en- 
counter this  evidence,  the  plaintift's  coun- 
sel examined  the  friends  of  the  testator, 


who  strongly  deposed  to  his  sanity ; '  and, 
again,  the  Chief  Justice  expressed  hia 
opinion  to  be,  that  all  the  defendant's  wit- 
nesses were  grossly  and  corruptly  per- 
jured. And  after  the  trial  of  this  issue 
the  will  was  established.  In  such  a  case, 
to  have  compelled  the  devisee  to  call  these 
witnesses  would  have  been  to  smother  the 
investigation  of  truth.  Now,  in  the  pres- 
ent case,  the  application  to  this  court  is  not 
by  the  devisee  seeking  to  establish  the  will, 
but  by  the  heir  at  law,  calling  upon  this 
court  to  declare  the  will  void,  and  to 
have  the  same  delivered  up.  The  heir  at 
law  does  not  seek  to  try  his  title  by  an 
ejectment,  and  apply  to  this  court  to  di- 
rect that  no  mortgage  or  outstanding 
terms  shall  be  set  up  against  him  to  pre- 
vent his  title  from  being  tried  at  law,  but 
seeks  to  have  a  decree  in  his  favor,  in  sub- 
stance and  effect,  to  set  aside  the  will.  This 
case,  therefore,  stands  upon  a  ground  di- 
rectly opposite  to  that  upon  which  the 
cases  above  referred  to  rest.  So  far  from 
the  heir  at  law  being  bound  by  a  decree 
which  the  devisee  seeks  to  obtain,  it  is  ho 
who  seeks  to  bind  the  devisee,  and  such 
is  the  form  of  his  application,  that,  if  he 
fails  upon  his  issue,  he  would  not  be 
bound  himself.  For  the  only  result  of  a 
verdict  in  favor  of  the  will  would  be,  that 
the  heir  at  law  would  obtain  no  decree, 
and  his  bill  would  be  dismissed,  still  leav- 
ing him  open  to  his  remedies  at  law.  No 
decided  case  has  been  cited,  in  which  the 
rule  had  been  held  to  apply  to  such  a  pro- 
ceeding; and,  certainly,  neither  reason 
nor  good  sense  demands  that  this  court 
should  establish  such  a  precedent  under 
the  circumstances  of  this  case.  If  the 
object  of  the  court,  in  directing  an  issue, 
is  to  inform  its  own  conscience  by  sifting 
the  truth  to  the  bottom,  that  course  should 
be  adopted  with  respect  to  the  witnesses, 
which,  by  experience,  is  found  best  adapted 
to  the  investigation  of  the  truth.  And 
that  is  not  attained  by  any  arbitrary  rule 
that  such  witnesses  must  be  called  by  one 
and  such  by  the  other  party,  but  by  sub- 
jecting the  witnesses  to  the  examination 
in  chief  of  that  party,  whose  interest  it  is 
to  call  him,  from  the  known  or  expected 
bearing  of  his  testimony,  and  to  compel 
him  to  undergo  the  cross-examination  of 
the  adverse  party  against  whom  his  evi- 
dence is  expected  to  make."  See  2  Russ 
&  Mylne,  pp.  13-15. 


PART  IV.]  WILLS.  607 

§  695.  The  competency  of  the  witnesses^  and  the  admissibility  of 
their  opinions  iii  evidence,  have  already  been  considered  in  the  pre- 
ceding volume.^ 

1  Ante,  Vol.  1,  §§327-430,440.  As  to  the  competency  of  executors  and  trustees, 
«e«  "irticularly  §§  333  409. 


INDEX. 


A.  Bbotioh 

ABATEMENT, 

plea  of  alien  enemy  in  .......       19 

defective  or  improper  service  of  process  .         .  20 

misnomer  .    '     .         .         .         .         .         .         .21 

bill  not  found  by  twelve  of  the  grand-jury       .         .  22 

irregularity  in  impanelling  or  summoning  grand- 
jury  ........  22,  n.  4 

non-tenure  and  disclaimer  .....       23 

want  of  parties      .......  24 

in  partnership     .....       25 

pendency  of  prior  suit   ......  26 

judgment  in,  when  peremptory      ......       27 

damages  in       ........  .  27 

ACCORD  AND   SATISFACTION, 

substance  of  this  issue  .......       28 

what  is  a  good  accord  and  satisfaction        ....  28 

who  is  to  judge  of  it     .         .         .         .         .         ,         .         .  28  a 

when  admissible  under  the  general  issue,  and  when  not      .  29 

proper  parties  to  ........       80 

accord  alone,  when  no  bar        ......  30 

accord,  with  tender  of  satisfaction,  when  sufliclent  .         .       31 

when  payment  and  acceptance  in  satisfaction  are  both  put  in 

issue  .........  32 

when  presumed  from  lapse  of  time  alone        .         .         .         .33 

{See  Payment.) 
ACCOUNT, 

action  of  .......         .  35 

between  whom  it  lies  . 35 

pleadings  in     ........         ,  36 

privity  necessary  to  support  ....  ,37 

material  averments  in       .....         .  37 

VOL.  II.  39 


610 


INDEX. 


kCCOV^T  —  Oontinued. 

evidence  under  issue  o^ plene  computavit 

plea  of  ne  unques  lailiff 

auditors  in 

auditors  in  trial  of  issues  certified  by  .         .         • 

judgment  qvod  compxitet,  effect  cf  .         •         • 

ACCOUNT   STATED, 

what  amounts  to  proof  of  .... 

ACKNOWLEDGMENT  OF   DEBT, 

what  amounts  to 

effect  of 

ACT  OF   GOD, 

what  is 

when  it  excuses        .         .         •      ,  • 
ADMISSION, 

of  signature  ...••••• 

of  seaworthiness      ...•••• 

of  marriage 

ADULTERY, 

nature  of  the  evidence  to  establish     .... 
proved  by  evidence  of  proximate  circumstances     . 
general  cohabitation 
general  conduct,  creating  a  snspici 
violenta  .... 

when  proved  by  impression  and  belief  of  witnesses     . 
when  continuance  of,  presumed,  after  proof  of  one  act    . 
of  wife,  when  birth  of  child  evidence  of      .         . 

of  husband,  acts  in  proof 

Df  either,  when  proved  by  visit  to  brothel 

by  disease  .... 

when  proved  by  confession  of  party 

by  evidence  of  particeps  criminis 
to  what  time  the  evidence  must  relate 
when  evidence  of  acts  not  charged  is  admissible     . 
proof  of,  upon  indictment  for  this  crime     . 
when  and  wliat  evidence  of  marriage  is  requisite    . 
proof  of  identity  of  parties,  when  requisite 
evidence  in  defence  of  action  for  crim.  con. 

of  collusion  between  husband  and  wife 

of  connivance,  and  connivance  defined    . 

of  passive  sufferance  of  husband 

under  plea  of  recrimination     .... 


Section 

.       38 

38 
.       39 

39 
.       39 

127-129 

440-443 
440,  n. 


219 
219 


164,  165 
401,  n. 
.     462 


40 
41 
41 

41 
42 
43 
44 
44 
44 
44 
45 
46 
47 
47 
48 
49,  50 
50 
.  51 
51 

51,  &  n.  3 
51 
52 


IMDEX.  611 

Section 
ADVLTF.liY  —Continued. 

evidt-nce  under  plea  of  condonation  .         .  53,  &  n.  8,  54,  7i.  4 

proof  of  damages  ........       55 

in  mitigation  of  damages  .....  56 

letters  of  wife  when  admissible  for  husband  .         .         .         .57 

general  character  of  wife  in  issue      .....  58 

{See  Seduction.) 
AGENCY, 

nature  and  definition  of         ....•••       «^9 

proof  of,  directly  or  indirectly  ......  60 

by  deed,  when  necessary         .         .         .         .         .61 

•where  a  corporation  aggregate  is  principal  .         .  62 

by  writing,  when  necessary     .         .         .         .         .63 

by  testimony  of  the  agent  himself        .         .         •  63 

by  inference  fi-om  relative  situation  .         .      64,  64  a 

by  habit  and  course  of  dealing     .         .         .         .     65,  66 

by  possession  of  negotiable  or  other  security    .         .        65 
by  subsequent  ratification    .....  66 

bv  long  anpiiescence       ......       67 

effect  of  ratification  of  tortious  act G8 

liability  of  principal  for  tortious  act C8 

revocation  of  . 68  a 

ALLEGATIONS, 

when  descriptive  .         •         .         •         •         •         •         .12 

ALTERATION, 

in  a  will,  when  deliberative  and  when  not ....         681 
AMENDMENT, 

of  record,  when  allowed        .  .  .  .         •  •         .11 

*       of  process,  in  the  names  of  parties 1 1  « 

of  pleadings         .         .         .         .         •         •         •         •         .116 

under  recent  English  statutes II  c.  d 

when  not  allowed        .         .         .         .         •         •         •         .lie 

ARBITRATION   AND   AWARD, 

modes  of  the  submission,  and  remedies  thereon  .         .  69 

remedy  by  action  of  debt,  when  preferable     ....       70 

proof  of  the  submission     .......  '  1 

when  by  parol        .......       72 

of  the  authority  of  the  umpire  .         .  73,  &  n.  6,  78,  7i.  1 

of  the  execution  of  the  award 74 

of  notice,  publication,  and  delivery  of  the  award        •.  75 

of  demand  of  payment,  whPM  necessary         .         .         .76 
of  performance  by  plaintiF        .....  77 


612 


INDEX. 


SEcnoN 


ARBITRATION   AND  K^KRJi  —  Continued. 

defences  to  an  action  upon  an  award     . 
arbitrators,  when  and  bow  far  competent  witnesses 
proof  of  revocation  of  tbe  submission     . 

minority  of  party  .         .         . 

refusal  of  arbitrators  to  act 
evidence  under  non-assumpsit  ... 
ASCRIPTION   OF   PAYMENTS     . 
ASSAULT   AND   BATTERY, 

assault,  what    ...... 

intent  material  in     . 

battery,  what 

intent  material  in     . 

or,  freedom  from  fault 
when  not  necessary  to  be  proved 
when  defence  must  be  specially  pleaded    . 
proof  of  time  and  place,  how  far  material 
when  plaintiff  may  waive  one  trespass  and  prove  another 
when  he  is  bound  to  elect    .... 
actual  battery  needs  not  to  be  proved 
consequential  damages,  when  to  be  specially  laid 
proof  of        .         .         . 
when  not  necessary  to  allege     . 
damages,  what  to  be  alleged,  and  what  may  be  proved  with- 
out special  averment     .... 
{See  Damages.) 
confessions  and  admissions,  when  admissible 
conviction  on  indictment,  when  evidence  in  a  civil  action 
allegation  of  alia  enormia,  its  office 
defences  in,  classes  of,  and  mode  of  pleading 
evidence  under  the  general  issue 
evidence  of  intention,  when  material 
when  admissible 
necessity,  when  admissible 
evidence  under  plea  of  son  assault  demesne    . 

with  replication  of  de  injuria  . 
with  replication  in  justification 
when  pleaded  with  the  general  issue 
replication  of  de  injuria 
,  plea  of  moderate  castigavit 

molUter  manus  imposuit 


78 
78 
79 
80 
80 
81 
529-o3fi 


82 
,       83 

84 
.      85 

85 
,       87 

85 
.       86 

86 
,       86 

87 
88,89 

88 
.       89 

89 

.       90 

90 
.       91 

92 
.       93 

94 
.       94 

94 
.       95 

95 
.       95 

95 
.       96 

97 
.       98 


justification  of  act  done  to  preserve  the  peace  99, 100 


INDEX. 


013 


Section 

ASSUMPSIT, 

when  implied  ........  102 

when  not     .         .         .         .         .         .         .         .         .         .103 

when  lilaintifFraust  declare  on  the  special  contract     .         .  101 

wlien  plaintiff  may  declare  on  common  counts  only         .         .104 
form  of  common  counts     .......    105,  n. 

proof  of  the  consideration     .......     lOo 

conditions  precedent        .  .  .  .  .  lU.) 

other  material  facts,  under  the  general  isjue         .     lOG 
damages         .         .         .         .         .         .         .  lOG 

proof  of  request   ........     107,  108 

moral  obligation,  when  sufficient        .         .         .         .         .         107 

promise,  when  implied  .         .         .         .         .         .         .108 

from  tortious  conversion   .......    108,  n. 

privity,  what  is  sufficient      .         .         .         .         .         .         .109 

parties,  want  of  proper,  when  fatal    .         .         .         .         .  110 

proof  of  particular  capacity  of  plaintiff .         .         .         .      110,120 

unlawlulness  of  contract,  wiien  fatal  .         .         .         .  Ill 

count  for  money  lent,  proof  of      .         .         .         .         .         .112 

money  paid 1 13 

when  defendant's  older  to  jiay 

must  be  proved     .  .  .114 

what  payments  are  deemed  of- 
ficious      .         .         .         .         114 

when  contribution  may  be  had        1 15 

under  a  judgment     .         .         .     11 G 

count  for  money  had  and  received,  proof  of        .         .  117,  IIS 

when  delivered  in  trust  .  1  U) 

count  fur  money  had  and  received,  when  obtained  by  wrong       120, 

121 
count  for  money  had  and  received,  when  paid  upon  a 

forged  security  .         .         .         .         .         .         .         .122 

count  for  money  had  and  received,  when  paid  upon  a 

mistake  of  facts  or  of  law      .         .         .         .         .         .         123 

count  for  money  had  and  received,  when  paid  upon  a 

consideration  which  has  failed 124 

count  for  money  had  and  received,  when  paid  upon  an 

agreement  rescinded      ......  124 

count  for  money  had  and   received  by  agent,  action 

for ,         .         .125 


count  upon  an  account  stated^  proof  of  . 
for  work  and  labor   .... 


12G,  127,  128,  129 
13G  a 


614 


INDEX. 


ASSUMPSIT  —  Continued. 

pleas  by  defendant  in  abatement,  of  misnomer 

coverture     . 
want  of  parties 
partnership 
replication  to  plea  of  want  of  parties     . 
when  «o/^ejorose^w4*  may  be  entered 
replication  of  infancy,  when  bad  .... 

general  issue,  what  may  generally  be  shown  under 

what  matters  in   discharge  may  be   shown 
under  ....... 

when  failure  of  consideration  may  be  shown 
under       .... 

ATTORNEYS, 

actions  by,  in  general       .... 

actions  for  fees,  evidence  in  . 

by  partners      ... 

retainer,  effect  of 

conduct  of  business  by      ...         . 
extent  of  their  undertaking,  and  liabihty 
defences  to  action  by,  for  fees  . 

when  negligence  may  be  shown 
what  damages  recoverable  against     . 
when  amenable  to  summary  jurisdiction 
actions  against,  for  misconduct  causing  loss  of  debt 

loss  of  title 
AUTHORITY, 

when  it  needs  not  be  proved  ... 


Section 

.     130 

130 
131,  132 

134 
.     133 

133 
.     133 

135 

.     136 
136 

138 
.     139 

140 
141,  142 

142 
144,  145 

143 
.     143 

146 
.     147 

148 
.     149 

316,  n. 


B 

BANKER'S   CHECKS, 

presentment  of  .         .         .         .         ,         .         .         .195  a 

BASTARDY, 

who  are  bastards .150 

adulterine,  how  proved  ......     150,  n. 

when  parents  are  competent  witnesses  ....     151 

period  of  gestation    ........         152 

may  be  shown  by  proving  marriage  void       ....     153 

parents  divorced  .  .  .  153 
may  not  be  shown  by  proving  marriage  voidable  .  .  .153 
when  legitimacy  will  be  presumed    .....         153 


INDEX. 


615 


Sectiok 
BILLS   OF   EXCHANGE   AND   PROMISSORY   NOTES, 

by  what  law  governed  .  .         .         .         .         .         .  153rf 

varieties  of  liability  and  remedies  upon      .         .         .         .         154 

material  allegations  in  actions  upon       .         .         .         .         .155 

mu.-t  be  pleaded  according  to  their  legal  effect  .         .         .     14,  15 
forms  of  declarations  upon    ......  loo,  n. 

(1.)  existence  of  the  instrument,  proof  of         ....         156 

when  lost  .         .         .156 

when  made  by  partner  .         167 

what  further  must  be  shown  under  the  general  issue      .         .156 

signature  of  the  instrument,  proof  of         .  .  .  158,  159,  162 

when  dispensed  with  .  .         .     159 

identity  of  the  instrument,  what  is  descriptive  of         .         .         160 

of  parties  to  the  instrument,  proof  of         .         .      158,160 

currency,  when  value  of  to  be  proved         .         .         .         .         160 

usances,  when  to  be  proved  .         .         .         .         .         .     1 60 

acceptance,  when  not  necessary  to  be  proved     .         .         .         160 
.   (2.)  proof  that  defendant  is  a  party  to  the  instrument  .         .         .161 

by  his  acceptance  .         .  161 

by  his  promise  to  accept 

a  non-existing  bill  161,  7i. 

proof  that  defendant  h  a  party  by  testimony  of  other  par- 
ties, when    .  .......         161 

(3.)  plaintiff's  interest,  o."  title  to  sue,  must  l^e  proved  .         .         .163 

when  admitted  by  acts  of 

defendant   .         .         .         164 
limitation  of  such  admis- 
sions 
admission  of  procuration,  what  is        .         .         . 

of  indorsements,  what  is        .         .         . 
indorsements,  what  must  be  alleged  and  proved 
partnersliip,  when  to  be  proved     .... 

indorsement  in  blank,  effect  of  ... 

action  by  drawer  v.  acceptor,  evidence  in 

indorser  v.  acceptor    .... 

accommodation  acceptor  v.  drawer 
other  actions  founded  on  return  of  bill,  evidence  in 
consideration,  when  impeachable   .... 

\4.)  plaintiff  must  prove  breach  of  contract  by  defendant 
presentment,  when 
presentment,  when  not  excused 

at  what  time  to  be  made  . 


. 

.  165 

. 

164 

. 

.  165 

. 

166 

. 

.  167 

. 

168 

. 

.  169 

, 

169 

.  170 

. 

169 

. 

171-173 

t . 

174 

174- 

176,  186  a 

. 

111 

178 

,  179,  181 

616  INDEX. 

Section 
BILLS   OF    EXCHANGE,  &c.  — Continued. 

presentment,  at  what  place       ....  180,  180  a 

when  provable  by  entries  ....     182 

protest,  when  necessary  to  be  proved         .         .  .183 

when  want  of  excused      .....      184,196 

when  not  necessary       .         .         .         .         •         •         18o 

dishonor,  notice  of,  necessary         .         .         .         .         •         .186 

due  diligence  in,  a  mixed  question         .         186 

form  of  notice,  and  by  whom  to  be  given  .     186 

when  to  be  given  .         .         .  186,  187 

when  sent  by  post  .         .         .         .         .187 

when  plaintiff  must  prove  that  it  was 

received  .         .         .         .         .         •  187 

by  agent  or  banker  ....  187  a 

when  agent  or  banker  treated  as  holder  187  a 
where  parties  reside  in  the  same  town  .  188 
variance  in  what  .         .         .         •  189 

when  waived 190,  190  a 

when  not     ......  190 

knowledge  of  the  fact,  sufficient         .         190,  n. 
probability  of  the  fact,  not    .         .         .    190,  n. 
by  hotter,  how  proved       .         .         .      191,  193 
notice  to  produce  .         .         .  191,  192 

to  what  place  to  be  sent  .         .         .         .194 

want  of  notice  of,  when  excused    .         .         .  195,  196 

in  case  of  banker's  checks    195  a 

excuse  need  not  be  averred         .  197 

defences  to  actions  on  ......     198 -20i 

b}'  impeaching  consideration  .         .  199 

by  other  equities  between  original  parties      200 

by  matter  in  discharge  of  acceptor  .         .         .         201 

of  other  parties      .         .         .     201 

defences  by  matter  in  discharge  of  parties  collaterally  liable        202 

by  new  agreement        .         .     202 
competency  of  parties  to,  as  witnesses        ....         203 

drawer       .....     203 

partner  ....         203 

maker 204 

acceptor  or  drawee  .         .         205 

payee         .....     206 
indorser  ....         207 


INDEX. 


t)17 


CARRIERS, 

liability  of,  and  remedies  against  . 

forms  of  declaration  against 

(I.)  contract,  proof  of 

when  it  must  be  proved  in  tort 
termini,  and  variance 
proper  parties  to  the  suit 
common,  proof  of  contract  supplied  by  law     . 
who  are  such      .... 

(2.)  delivery' of  goods,  proof  of    .         .         .         • 
(3.)  loss  or  non-delivery  of  goods,  proof  of 
when  i)l:iintiff's  oatti  admissible 
proof  of  joint  interest  in  «ss»w/)sj'<     . 

in  tort 
whether  carrier  may  restrict  his  own  liability 
notice  by,  burden  of  proving 

when  by  advertisement,  proof  of 
wiicn  several  and  different  notices 
effect  of,  how  avoided 
waiver  of  . 
negligence,  &c.,  on  whom  is  the  burden  of  proof 
private,  excused  by  accident  .... 

common,  what  excuses     ...... 

when  excused  by  act  of  plaintiff    .... 

of  passengers,  liabilities  of,  as  to  persons    . 
as  to  luggage 
liable  only  for  negligence    .    222,  &  n. 
m  cases  of  mutual  negligence 
of  passengers,  burden  of  proof  on       ...         . 

breaking  of  coach  presumptive  proof  of 
ligence       ..... 

when  not  bound  to  receive  or  convey  . 

CASE,    ACTION    UPON   THE, 

distinction  between  trespass  and  case    . 

lies  for  injuries  to  relative  rights 

when  trespass  or  case  lies    ..... 

whether    case    lies   for    injuries    to    absolute    rights 
force    ......••• 

proof  of  joint  interest  in  plaintiffs 

joint  liability  in  defendants,  when 


3,  2 


wiih 


Section 

.  208 
210,  n. 
.     209 

214 
.     209 

212 
.     210 

211 
.     213 

213 
.     213 

214 
.     214 

215 
.     21(5 

21G 
.     217 

218 
.     218 

218 
.     219 

219 
.     220 

221 
221,  n. 
•>■>  a,  n.  3 
221,  «.  5 

222 

.     222 
222  a 

.     224 

225 

.     225 

226 

227 
228 


618 


INDEX. 


CASE  —  Continued. 

allegation  of  time,  when  material  to  be  proved 
malice  and  negligence,  proof  of 
misrepresentation      .... 

for  injury  to  real  property         .... 

general  issue,  evidence  under       .... 

damage  resulting  from  want  of  due  care  by  plaintiff 
special  pleas,  when  necessary        .... 

liabih'ty  of  master  for  servant   .... 

CONSIDERATION, 

when  divisible     ....... 

CONTRACT, 

entire,  when    ....... 

COPYRIGHT 

{See  Patents.) 
COVENANT, 

declarations  in  .         .     239,  w.,  240,  «.,  242,  n.,  2 

no  general  issue  in       ....         . 
proof  of  the  instrument     .... 

performance  of  condition  precedent  . 
breach  of  covenant 

of  indemnity 
breach  to  be  substantially  proved 
notice,  when  necessary         .... 
against  defendant,  as  assignee  of  covenantor 

defences  by 
by  plaintiff,  as  a-^signee,  evidence  by 
real,  what  are  such       ..... 

who  may  sue  thereon 
of  seisin,  Avhat  is  a  breach  of        .  .  . 

of  freedom  from  encumbrance,  breach  of    . 
for  quiet  enjoyment,  breach  of      .         .         . 
of  warranty,  breach  of      . 
against  assigning  and  underletting,  breach  of 
to  repair,  breach  of .         .         .         .         , 
plea  of  «o?i  es^/aciM?;2,  effect  of    . 

evidence  under      . 
plea  of  performance,  who  must  prove   . 
COUNT, 

when  several  and  when  not 
CRIMINAL   CONVERSATION, 

{See  Adultery,  Marriage.) 


Section 

.     229 

230 

.  230  a 

230  J 
.     231 

231  a 
.     232 

232  a 


136 


136a,  2Gla 
.    510-515 


43,  w.,  245,  n. 
.     233 

234 

.     235 

236,  237 

.     236 

237 
.     238 

239 
.     239 

240 
.     240 

240 
.     241 

242 
.     243 

244 

.     245 

245  a 

.     245 

246 
.    247 

105,  n. 


INDEX.  G19 

Section 
CUSTOM   AND   USAGE, 

^\l"it .248 

its  difference  from  Prescription  and  Usage    ....     248 

loc<al,  who  is  competent  to  prove        .....         249 

usage,  who  is  competent  to  prove 24D 

local,  how  proved 250 

usage,  what  and  how  proved  .  .  .  .  251,  &  «.  3 

and  usage  must  both  be  proved  by  evidence  of  facts  only    .         252 

by  what  witnesses  .         .     252 

usage  founded  on  foreign  laws,  how  j)roved        .         .         .  252 

proof  of,  one  witness  not  enongh  ....     252 

(See  PuEsCRiiTiON.) 

D. 

DAMAGES, 

what,  and  when  given 253 

vindictive  or  exemphiry 253,  }i. 

general  and  special,  defined       ......  254 

to  be  assessed  by  tlie  jury    .......     255 

nominal,  when  plaintitf  may  take  judgment  for  .         .  254,  255 

the  natural  and  proximate  cause  of  the  wrongful  act    256,  &  n.  5,  G35 
liquidated,  by  whom  to  be  proved      .....  257 

what  are  such 258,  259 

proof  of,  not  confined  to  number  and  vahie  alleged     .  .  2*J0 

may  be  assessed  beyond  alleged  value 2G0 

not  bi-yond  ad  damnum   ....         260 

measure  of,  general  rule 253,  n.,  261 

when  no  particular  sum  or  quantity  is  proved  255 

on  bills  of  exchange 2G1 

on  contracts  to  deliver  goods  .         .         .         .         2G1 

to  replace  stock       .         .         ,         .     2G1 

to  convey  land    ....    261,  n. 

for  labor  and  service       .         .  261,  2G1  a 

where  not  prevented  by  plaintiff     .         .         .         261 

on  breach  of  warranty  of  goods  .         .         .         .     262 

in  debt  on  bond 263 

whether  beyond  the  penalty  and  interest      257,  k.,  263 

on  covenants  of  title 264 

of  warranty  .         .         .         .         .264 
ordinarily  measured  by  the  actual  injury    .         .         .    253,  n.,  265 

exceptions  to  this  rule 265 

agu'ravated  and  mitigated,  when         .         .  .         .         266 


620 


INDEX. 


Sbction 


D  A'MJiGJ^.S  —Contmited. 


in  actions  for  injuries  to  the  person 

.     2G7 

in  actions  for  injuries  to  the  reputation 

2G7,  209 

proof  of,  how  restricted         ..... 

.     2G8 

to  what  time  computed     ..... 

.      208  a 

when  costs  may  be  included          .... 

2t*i.S  It 

prospective,  when  allowed         .... 

2t;s  fj 

when  and  how  far  affected  by  the  character  and 

rank  of 

the  i)arties       ....... 

.     209 

whether  affected  by  intention  of  thi'  party 

230  a,  270,  272 

when  dependent  wholly  on  the  intention 

.     271 

when  increased  by  bad  intention 

272 

evidence  in  mitigation  of      ....         . 

272,  458,  025 

when  excluded 

274 

in  a^igravation  of  . 

.    27:J 

in  case  for  nuisance          ..... 

171 

for  seduction        ....... 

.  577  (t 

in  slander         ....... 

275 

in  trespass  ........ 

f,.;5  ,1 

in  trover          ....... 

27G,  G49 

in  violation  of  patents           ..... 

409,  n. 

for  waste          ....... 

G5(.) 

against  several  for  a  joint  tort       .... 

.     277 

severally  assessed,  election  de  meliurihus  dainnis 

277 

alia  enormia,  evidence  under  this  allegation 

.     278 

DATE, 

when  essential  to  be  proved          .... 

.  12,13,100 

when  reckoned  inclusive           .... 

.     489,  n. 

DEATH, 

amount  of  proof  required  in  different  cases  in  genei 

al    .         .  278  a 

proof  of,  in  what  cases  usually  required     . 

.      278  b 

direct  proof  of     ......         . 

.  278  c 

indirect  proof  ....... 

.      278  d 

by  documents           .... 

.  278  (/ 

identity  of  persons,  proof  of      ...         . 

.       278  </ 

indirect  oral  evidence  of       ....         . 

.  27.Se 

burden  of  proof        ...... 

278  e 

presumption  of  life      ...... 

.  278  e 

of  death 

.      278/ 

diligent  inquiry  necessary    ..... 

278/ 

proof  0^,  by  family  conduct        .... 

278^ 

by  reputation  in  the  family 

.  278^ 

INDEX. 


0-Jl 


Sectios 


DEATH  —CoHltmted. 

.   amount  of  pnx)!"  r<(iuired  in  actions  for  possession  of  the  realty     278  A 


•-'7s  h 


280, 


personalty 

DEirr, 

when  it  litM      ..... 
fonns  of  declarations  in 
plea  of  tton  est  factum,  evidf-ncf  uml'  r 
nil  debet 

nil  hitbuit  in  tenementis 
statute  of  limitations 
fornuT  n-covery    .  .  .  • 

for  a  iMrnalty.  proof  in  »uppori  of 

proof  in  deft-nco 
for  bribery  at  an  election,  proof  in  support  of 

prtwf  in  defence 
for  an  escape      ...••• 
a-signiuent  of  breaches  on  reeonl 
plea  of  lolvit  ad  dirm,  evidence  under   . 

tolrit  post  diem      .  .  .  • 

parol  proof  of 
DEDICATION,  (A«  ^Vvr.) 

DKF.I), 

how  far  put  in  Usue  by  plea  of  non  est /actum 
proof  of,  in  what  it  consists  .... 
how  proved     ....-• 
proof  of  si;;niMg  .         .         .         • 

.sealing  .  .  .  '  • 

delivery  .  .         .  .  • 

foreign  authentication 

acknowledj;m«'nl       .... 

plea  of  non  est  factum,  what  may  be  shown  under  by  defendant       3<)0 

burden  of  proof  when  on  plaintitf         .     3<)(» 

on  defendant  .         300 

DEMAND, 

when  necessary  to  be  proved 171-1(G 

DEVISE.  (S-e  Wills.) 

i)ia:NKENNP:ss i7i.;i.,3oc,  374 

DURESS, 

what,  .  301 

per  minax        .....••••  302 

of  imprisonment  ....••••  303 

money  paid  by  .  •  •         •  •  '  - ' 


•279 

.     27'J 

.  279,  292 

281,281a,  282,2^^7 

2M 1 
.     2S2 

2->2 
.      283,  28 1 

28j 
.     28(> 

2*^7 

289 

.      290,291 

i90.  291 

291  a 


293 

29  I 
•_".'  I 
29.J 

29t; 

297 
298 
298 


622 


INDEX. 


E. 


Section 
EJECTMENT, 

nature  of,  and  ground  of  recovery  in     .         .         .         .         .     303 

points  to  be  proved  by  plaintiff  .  ...         304 

title  of  plaintiff,  when  not  necessary  to  be  proved  .         .         .     305 

who  are  estopped  to  deny  it      .         .         .         305 

proof  of  by  payment  of  rent  .         .         .     30G 

wlien  both  parties  claim  under  the  same     .         307 

possession  of  lands  by  defendant,  proof  of      .         .         .         .     308 

title  of  heir  or  devisee,  proof  of  pedigree  and  descent  .         309 

seisin  of  ancestor  .      310,311 

entry  by  whom  made         .         312 

title  of  remainder-man,  &c.,  proof  of     .....     313 

legatee  of  terra  of  years,  proof  of    .         .         .         .         313 

executor  or  administrator,  proof  of     ....     315 

guardian       .         .         .  .         .         .         .         .         315 

purchaser  under  sheriff's  sale    .         .         .         .         .316 

title  by  a  joint  demise      .         .         .         ,         .  ,         .         317 

by  several  demises         .         .         .         .         .         .         .317 

when  proved  to  be  part  only  of  the  land  .  .  .  317 
ouster  of  one  tenant  in  common,  by  another  .  .  .318 
by  landlord  against  tenant,  plaintiff  must  prove  tenancy 

determined 319 

by  lapse  of  time  .         .         .         .320 

by  notice  to  quit       .         .         .         321 
service  of  notice  .         .         .      322,  324 
form  of  notice  ....         323 

notice,  when  not  necessary    .         .     325 

when  waived  .         .         325 

by  forfeiture        .         .         .         .326 

for  non-payment  of  rent     326 

for  other  breach  .         .     327 

for  underletting         .         328 

between  mortgagee  and  mortgagor        ....  329 

defence  of  mortgagor  by  proof  of  payment  .         .         .         330 

usury  .         .         .  330 

what  may  be  shown  in  defence  of  this  action      .         .         .         331 
damages  in  ••.......     332 

trespass  for  mesne  profits,  plaintiff  must  prove  the  judgment       333 
defendant's  entry     ....     333 

his  own  possession         .         ,         .         334 


INDEX. 


623 


EJECTMENT  —  Continued. 

plaintiff  must  prove  defendant's  occupancy     . 

what  damages  plaintiff  may  recover 
lastini^  improvements,  remedy  of  defendant  for 
other  defences  in      ......         • 

(See  Real  Actions.) 
EXECUTORS   AND  ADMINISTRATORS, 
profert  by,  of  letters  testamentary 
character  of,  how  put  in  issue  ..... 

how  controverted      .... 

when  they  must  sue  as  sueh      ..... 

cbaracter  of,  bow  proved  when  plaintiff         . 
by  probate 

Iiow  rebutted  . 
by  record  .... 

administrator  de  bonis  non,  how  proved 
plea  of  statute  of  limitations,  when  avtjided  by  new  prom 

ise  to 

de  son  tort,  wlii-n  liabh;  as  such     ..... 

to  what  extent    . 
dc  son  tort,  retainer  by  ...... 

character  of,  burden  of  proving  .... 

plea  of  HC  ungues  executor,  consequence  of     . 

plene  admitiistravit,  proof  of  assets  under 

what  is  evidence  of  055^^5    . 
devastaint 
how  rebutted 
when  this  plea  is  proper  . 
plea  of  plene  administravif,  evidence  under  . 
retainer,  when  it  may  be  claimed       .... 

outstanding  judgments,  plea  of     .... 

ieMs  of  higher  nature,  plea  of  . 
admissions  by  one  of  several  executors,  effect  of   . 
{See  Trover.) 
EXTORTION, 

money  obtained  by  .         .         .         .         •         • 


Section 

:     335 
33G 

.     337 
337 


.    338 

338 

.     344 

338 

.     339 

330,  343,  n. 

.     339 

340,  341 

.     341 


342 
.     343 

345 
.     350 

344 
.     345 

340 
.  347 
347  a 
.  348 
348, «. 
.  350 
349,  350 
.     351 

351 
.     352 


121 


H. 


HEIR, 


proof  of  heirship 

death  of  nncestor 


354 
355 


G24 


INDEX. 


HEIR  —  Continued. 
'liability  of  . 

plea  of  riens  per  descent  .         .         .         . 
proof  of  assets     .         .         . 

by  lands  in  a  foreign  State 


Section 

356-358 

359 

.     3G0 

361 


I. 


IDEJNTITY, 

of  person,  proof  of,  when  requisite 

.     50,  278  d 

of  close   ......... 

625 

INFANCY, 

burden  of  proof  of        .          .          . 

.     362 

evidence  of      .......         . 

363 

plea  of,  how  avoided    ...... 

.     364 

necessaries,  what 

365,  366 

whether   or   not    necessaries,   by   whom 

de- 

ternained      ..... 

.     365,  n.  4 

may  consist  of  money  lent 

.   365,  w. 

evidence  of,  how  rebutted 

.      366,367 

new  promise  by  infant     ...... 

367 

no  defence  in  actions  ex  delicto     .... 

.     368 

INSANITY, 

when  it  is  a  good  defence,  or  not,  in  civil  cases 

.     369,  370 

in  criminal  cases     . 

372 

how  proved          ....... 

.     371,  689 

what  constitutes  it 

373 

.     374 

INSURANCE, 

declaration  on  marine  policy     ..... 

376 

proof  (1.)  of  the  policy 

.         .     377 

(2.)  interest     ....... 

378-381 

legal  or  equitable 

.     379 

380 

under  open  or  valued  policy 

.     381 

(3.)  inception  o^  rish        ... 

382 

(4.)  performance  of  conditions     . 

.     383 

compliance  with  warranties 

383,  384 

sailing  with  convoy       .... 

.     384 

(5.)  loss          ....... 

385-394 

proximate  cause  of  . 

.     387 

by  perils  of  the  sea        .... 

387 

INDEX. 


625 


INSURANCE  —  Continued. 

(5.)  loss  by  perils  of  rivers     .... 

by  capture    ...... 

when  voyage  licensed        .         *         . 
by  barratry  ....*. 

by  stranding    ..... 

total  or  partial      ..... 

proved  by  shipwreck     . 

by  abandonment  accepted 
amount  of,  proved  by  adjustment  . 
preliminary  proof  of  .... 

matters  in  defence,  viz. 

misrepresentation  and  concealment 

burden  of  proof 
breach  of  warranties     . 
unseawortliines-s 
illegality  of  voy.ige 
want  of  documents 
want  of  neutrality    . 
matters  in  defence,  viz. 

deviation     .... 

against  fire,  declaration  in  ..... 

proof  of  loss      ..... 

by  lightning  without  combustion 
gross  negligence  of  assured 
performance  of  conditions 
rule  of  estimation  of  damages     . 
defences  in    . 


upon  lives 


nature  of  interest  insurable 
ISSUE, 

what  ....... 

how  formed     ..... 

general  and  special       .... 

general,  in  assumpsit,  its  extent 

in  English  practice  .         . 

in  American  practice   . 


Sectiok 

387,  «. 

387,  388 

.    389 

390 
.     391 

392 
.     392 

392 
.     393 

394 

39G,  397 

.     398 

399-401 

400,  401 

402 

.     402 

402 


.     403 

404 
.  405 
405,  n. 
405,  n. 

406 
.     407 

408 
.     409 

409 


3 
3,4 

5 
6-8 

8 

8 


JUDGE  AND   JURY, 

their  respective  provinces 
VOL.  II.  40 


J. 


28  a,  186,  442,  n.,  490,  504,  n.,  605,  662 


626  INDEX. 


L. 

Section 
LAW   AND   FACT,  {See  Judge  and  Jury.) 
LIBEL  AND   SLANDER, 

to  be  defined  by  the  court  and  tried  by  the  jury    .         .         .411 
declarations  in  .         .         .         .         .         .         .         .         410 

points  of  plaintiff's  proof 410 

special  character  .         .         .         412 

other  prefatory  allegations        .         .413 

publication  of  words     .         .         .         414 

by  defendant  .         .415 

by  his  agents      .  415,  416 

points  of  plaintiff's  proof,  publication  of,  when  printed   .         .416 

by  letters  .  .  416 
colloquium  and  innuendoes  .  .  .417 
malice         ....  418,  419, 422 

damages 420 

defence,  under  the  general  issue        ....        421-425 

when  the  truth  may  be  given  in  evidence  .         .421 

words  spoken  in  discharge  of  duty         .         .  421,  n.  2 

in  confidence      .         .         .         .     421,  n.  2 

in  honest  belief  of  their  truth  .         .         421 

whole  libel  to  be  read 423 

damages,  evidence  in  mitigation  of    .         .         .         .  424,  425 

evidence  of  character,  when  admissible  .         .         .426 

justification  of,  degree  of  proof  required     .         .         .         .         426 

charging  violation  of  professional  confidence  ....     427 

slander  of  title 428 

other  special  damages 428 

course  of  trial  .......  .         429 

LICENSE, 

proof  of 627,643 

LIMITATIONS, 

in  bar  of  rights  of  entry   ...,,..         430 

.     431 

431 

.    432 

433-435 

.     439 

437 

.    438 

439 


of  action       .         .         .         ,         . 
avoided  by  suing  out  of  process         .         •         . 

new  suit,  after  abatement    . 
time,  from  period  or  act  computed     . 

not  arrested  when  once  begun  to  run    . 
avoided  by  showing  absence,  out  of  the  jurisdiction 
when  in  case  of  joint  liabilities 
how  rebutted 


INDEX. 


627 


Section 
LlillT  ATIONS  —  Continued. 

avoided  by  showing  new  promise  ....    440  -  445 

acknowledgment  of  indebtment  .         .         440 

what  amounts  to  .   441  -  445 

when  not  admissible  .         446 

merchants*  accounts,  what      .         .        .447 

fraud  in  defendant      ....         448 


M. 

MALICIOUS   PROSECUTION, 

nature  of,  and  what  amounts  to    . 

wlit'tlicr  it  lies  against  a  corporation  .         .         . 

action  for,  proof;^  by  plaintitf         .... 

proof  of  the  prosecution    .... 

prosecution  ended    .  .  . 

malice  ami  want  of  probable  cause 

burden  of  proof  of   . 

probable  cause,  what  is         .         . 

proof  of,  by  delendant 

damages      ..... 

defence  in  this  action  ...... 

by  proof  of  plaintiff's  bad  character,  when     . 
advice  of  counsel     . 
MARRIAGE, 

nature  of  the  contract  of,  and  when  valid  . 
modes  of  proof  of         .....         . 

by  reputation     ..... 

by  admissions  of  parties 

by  conduct        ..... 

by  written  document 

how  rebutted     ..... 

MASTER  AND   SERVANT, 

master,  when  liable      ...... 

(See  Case.) 
MONEY   COUNTS, 

what  evidence  is  admissible  under     .         .         .     112-125,  129  a 


.  449 

.  453,  n. 

450-456 

450,  451 

.  452 

453 

.  454 

454,  455 

.  457 

456 

.  457 

458 

.  459 


4C0 
4G1 
4G2 
462 
4G2 
4G3 
464 


232  a 


N. 


NUISANCE, 

what  is 


465-469 


628 


INDEX. 


NUISANCE  —  Continued. 

to  dwelling-house 

to  lands        ....... 

to  incorporeal  hereditaments 

to  reversionary  interests        .... 

action  for,  is  local    ...... 

proofs  by  plaintiff        ..... 

possession,  or  title 
injury  by  defendant 

when  lessor  liable  for 

when  by  plaintiff's  own  fault 

when  by  mutual  faults 

when  by  defendant's  own  fault 

proximate  cause  of  . 

damages      .... 

defences  to  this  action       ..... 

by  proof  of  abandonment  of  rig 
plaintiff  . 


470 


Section 

466 

.     407 

468 

.     409 

470 

471 

471 

472 

472 

473 

47:5 

473 

473 

.     474 

475,  476 


ht  by 


476 


OBLITERATION, 


O. 

{See  Alteration.) 


P. 


PARTNERSHIP, 

evidence  of 

477-479 

in  actions  by  partners         .... 

478 

in  defence     ...... 

.     480 

as  between  the  partners      .... 

481 

as  against  them     ..... 

482  -  484 

must  extend  to  all 

483 

by  common  report          .... 

.     483 

by  admissions  of  the  partners 

484 

how  rebutted         ..... 

.     48.5 

when  the  partners  are  competent  witnesses 

480 

PATENTS, 

remedy  for  infringement  of  right  .... 

.     487 

declaration  for          ....... 

.    487,  ?<. 

proofs  on  plaintiff's  part       ..... 

487-498 

letters-patent      .... 

488 

specification  .... 

.     48.S 

INDEX. 


t)29 


PATENTS  —  Continued. 

proofs  on  pliiintift"s  part,  how  expoun.led  . 

gullicieney  of  .... 

assignment  .... 

invention  his  own  .         .         •         • 
invention   new,  and  reduced  to  prac 


Skctios 

4H0 
.     41)0 

491 
.     402 


tice         .         .         .         • 

useful     . 

infringement 

damages  .         .         •         • 

identity  of  machines     . 
purchu-er  a  competent  witness 
defences,  and  special  notices  of 


403,  405 

.      403,  405 

400,497,506 

.     40G 

408,  50G 

.     400 

500 


by  evidence  of  previous  use    .         •         .  501,  501  a,  502 
in  a  foreign  country  .         502 

suh-equent  patent 
duplicity  of  patent    . 
unlawfulness 
injurious  tendency  . 
abandonment  by  patentee 
dedication  to  public . 
defective  specification  . 
disclaimer,  when  it  may  be  made 
other  violators  of,  competent  witnesses 
adverse  patentees,  compt-tL-nt  witnesses      . 
COPYRIGHT,  action  for  infringing 
proofs  by  plaintiflF  . 

entry  of  copyright 
authorship 
assignment 
infringement  . 
defences  in  this  action 
when  injunction  may  issue 
PAYMENT, 

what  is    ••••••         * 

when  it  must  be  pleaded      .... 

by  whom  to  be  proved      .... 

receipt  given,  when  to  be  produced 

proof  of,  when  made  to  agent  or  attorney  . 

to  order 
by  higher  security  given  ...» 
by  debtor's  own  security      .         .         .         • 


.     503 

503 

.     503 

503.  505 

.     504 

504 
.     505 

507 
.     508 

508 

.     510 

511,  514 

.     511 

512 
.     513 

514 
.     5 1 5 

515 

51G 
.     516 

516 
.     517 

518 
.     518 

519 
519,520 


630 


INDEX. 


PAYMENT  —  Continued. 

by  novation,  what    .         .         •         • 
by  debtor's  check         .         .         .         • 
by  negotiable  note  or  bill  .         • 

by  note  not  negotiable  .         .         < 

by  bank-notes  ...» 

by  note  or  bill  of  a  third  person    .         • 
by  foreclosure  of  mortgage 
by  legacy    ...... 

by  remittance  by  post 
by  delivery  of  specific  articles      •         . 
by  any  collateral  thing 
presumption  of,  from  security  taken  up 
from  lapse  of  time 
from  course  of  trade 
from  habit  of  dealing 
ascription,  or  appropriation  of  payments 

by  the  debtor 

by  creditor 

when  to  be  made 

when  it  may  be  changed 

by  law 

where  there  is  a  surety 

where  one  debt  is  barred  by 

lapse  of  time 
where  one  security  is  void 
when  ratably  made 
PRELIMINARY  OBSERVATIONS, 
PRESCRIPTION, 

what      ...... 

lost  grant,  when  presumed 

how  proved    . 
kinds  of     . 

what  may  not  be  claimed  by  . 
plea  of,  how  maintained      .         . 
customary  right,  what      ..... 

plea  of,  what  proof  will  support  it . 

or  defeat  it 
lost  grant,  proof  of  .         .         .         . 

{See  Custom.) 
PRESUMPTION, 

of  amount  and  quantity     ,         .         .         .         • 


Sectioit 

519 

.     520 
520 

.     521 
522 

.  523 
524 
524 
525 
526 
526 
527 
528 
528 
528 
529-536 
529,530 

.     531 
532 

.  532  a 
533 

.    534 

535 
.     535 
536 
1-18 

537,  538 

538,  539 
546 

.     540 

541 

.     542 

543 

544,  545 

544,  545 

.    546 


129  a 


INDEX. 

PUKSVUFTIOS  —Continued. 

of  possession  of  letters  testamentary 

of  payment     ..... 

of  knowledge  of  the  contents  of  a  will 

of  alteration  of  will  by  testator 

of  time  when  alteration  made 

of  sanity  ..... 

PRINX'IPAL   AND   AGP:NT, 

(See  AoENCT.) 

r  R I V I L  E  G  E  D   CO  M  M  U  N I  CATIONS, 

rifOHATE    OF    WILLS, 

mode  of  proof  of           ... 
ffftcl  of 

PUBLICATION, 

r>f  will,  what,  and  when  necessary 


631 

Sbctiov 

.     344 

32,  83,  527,  528 

G75,  n. 

618 

681,  n. 

689 


.     421 

.  339, 343,  n. 
672 


675 


REAL   ACTIONS, 

various  forms  of,  in  the  United  States 

of  remedies  for  mesne  pro/Us   . 
remedies  for  bettennc-nts 
writ  of  right,  evidence  in      .... 

sei-in  of  plaintiff,  proof  of 

plea  of  nul  disseisin,  evidence  under 

disseisin,  how  proved         .... 

how  rebutted         .... 

lasting  improvements  or  betterments,  what 
(See  Ejectment.) 
RECOUPMENT, 

when  allowed      ...... 

REPLEVIN, 

when  it  lies      ....... 

what  title  plaintiff  must  prove 
plea  of  non  cepif,  evidence  under 

property  in  defendant 
avowry  or  cognizance       •         •         .         .  , 

pleas  ofnon  demisit  and  non  tenuit,  proof  under 
nil  habuit  in  tenementis 
riens  in  arrear         .... 

cognizance  as  bailiff     .  .  .  . 

avowry  for  damage-feasant 


547 

. 

.  548 

519-551 

• 

.  554 

•    .    555 

. 

.     556 

557 

. 

.  558 

559 

136 


560 

.  501 

562 

.  563 

564 

.  565 

565 

.  566 

567 

.  568 

632  INDEX. 


Section 


'REFI.F.Yl'^  —  Continued. 

pleas  of  tendex" •         .  569 

competency  of  witnesses       ..••*..  570 

REVOCATION, 

of  authority  or  agency          .         .         •         •         •         •         .  68  a 

of  submission  . 79 

of  will 680-687 


S. 

SEDUCTION, 

action  for,  what  plaintiff  must  prove  ....        571  -577 

declaration  in       .         .         .         .         .         .  571,  n. 

proof  of  relation  of  servant        ......  572 

hiring  not  necessary  ......     573 

what  acts  of  service  sufTicient         ....  573 

when  absence  from  plaintiff's  house  is  not  a  bar  .     573 

is  a  bar           .  574 

service  must  have  existed  at  time  of  seduction  .  .     575 

when  service  will  be  presumed      .         .         .         .  576 

will  not  be  presumed  ....     576 

fact  of  seduction   . 577 

damages           .......  577  a 

general  issue,  evidence  under    ......  578 

damages,  grounds,  and  proaf  of     .         .         ,         ,         ,  ,     579 
(.See  Adultery.) 
SHERIFF, 

is  identified  with  his  under-officers     .....  580 

action  against      .         .         .         .         .         .         .         ,  .581 

for  misconduct  of  deputy        ....  582 

official  character  of  deputy,  when  and  how 

proved  .......     582 

declarations  of  deputy,  when  admissible          .  583 

declarations  of  creditor,  when  admissible   .  .     583 

for  7iot  serving  process,  plaintiff's  proofs  in      .  584 

defences  in     .         .  .     585 
for  taking  insufficient  pledges,  plaintiff's  proofs 

in 586 

defences  in    .         .  .     586 
for  not  paying  over  money,  plaintiff's  proofs 

in 587 

defences  in    .         ,  .     588 


INDEX. 

oaa 

, 

Section 

SHERIFF  — Cbn/i/merf. 

action  against  Iiis  return,  when  evidence  for  him 

585 

for  an  escape,  plaintiff's  proofs  in    . 

.      589,  590 

defences  in     . 

591 

for  false  return,  plaintitT".'^  proofs  in 

.     592 

defences  in 

WXd 

how  rebutted  . 

.     594 

for  refusing  bail 

595 

for  extortion           .... 

.    59i; 

for  taking  goods  of  plaintiff 

5"J7 

competency  of  witnesses  in  these  actions 

.     59S 

damages            ....... 

599 

SIGNATURE, 

proof  of 

71,  IGl,  1G5 

by  initials,  when  good       ..... 

.    158.  n. 

of  wills 

.     G74 

SLANDER, 

(«Scfl  Libel  and  Slander.) 

SUNDAY, 

contracts  made  on,  void    ..... 

.    199,  n. 

SUSPICION, 

when  it  may  be  shown  in  mitigation  of  damages     . 

.     272,  458 

T. 

TENDER, 

nature  and  effect  of 

of  money,  plea  of,  how  proved 

in  bank-notes  or  checks 
production  of  the  money  necessary 

when  dispensed  with 
of  a  greater  sum,  when  good 
must  be  absolute      .... 
may  be  under  protest   . 
wlicn  there  are  several  debts     . 

several  creditors  . 
to  whom  to  be  made 
at  what  time  to  be  made 
avoided  by  subsequent  demand 
of  specific  articles,  where  to  be  made 
how  to  be  made    . 
{See  Payment.) 


600 
.     601 

601 
.     602 

603 
.     604 

605 
605,  n. 

605 
.     605 

600 
.     607 

608 
609-611 
611  a 


634 


INDEX. 


Sect  I  OH 


TRESPASS, 

gist  of,  and  points  of  plaintiff's  proofs   . 

.     613 

(1.)  possession  of  plaintiff        ...... 

614 

constructive          ..... 

.     615 

by  lessee  or  bailee    ..... 

616 

by  general  owner  or  reversioner  . 

.     616 

of  partition  fences     ..... 

617 

of  line  ti-ees          ..... 

.     617 

by  wrongdoer 

618 

by  occupant  or  lodger 

.     618 

by  finder  of  goods     ..... 

618 

ratione  soli  ...... 

.     618 

of  animals /(??•«  «a<«r<s      .         .         .         . 

620 

right  of  entry  not  sufficient  ..... 

.     619 

boundaries,  when  necessary  to  be  proved  . 

.     618  a 

injury  by  defendant  with  force     .... 

.     621 

wrongful  intent  not  necessary 

622 

with  force  directly  applied 

.     623 

■proof  of  time,  when  material     ..... 

624 

trespass,  when  it  may  be  waived  and  another 

proved     624 

general  issue,  evidence  under    ..... 

625 

plea  of  liberum  tenementum,  evidence  under  . 

.     626 

license 

626 

in  law    ...... 

.     628 

justification  under  process          ..... 

629 

defence  of  property         .         . 

.     630 

right  of  way        ..... 

631,  632 

riijht  to  dig  gravel 

.     631 

replication  de  injuria,  evidence  under 

633 

new  assignment  in       .....         . 

.      634,  635 

TROVER, 

proofs  in,  by  plaintiff        ...... 

636-647 

(1.)  of  property  in  plaintiff  .... 

.     637 

special,  nature  of    . 

.    637,  «. 

in  goods,  by  sale 

.     638 

in  negotiable  securities    . 

639 

right  of  present  possession    . 

.     640 

property  as  executor,  &c. 

641 

(2.)  conversion  by  defendant,  what  is 

.     642 

license,  when  presume 

1       .         643 

conversion  by  defendant,  when  proved  b_\ 

de- 

mand  and  refusal      .... 

.     644.  645 

INDEX. 


635 


Section 
TROVER  —  Continued. 

proofs  in,  (2.)  conversion  by  defendant,  when  not  proved 

by  demand  and  refusal    ....         645 

between  tenants  in  common,  evidence  in        ...         .     646 

when  a  sale  by  one  is  a  conversion        .    646,  n. 
by  husband  and  wife    ........     647 

defences  in  this  action       .......         648 

damages  in  .........     649 

U. 
UNDUE   INFLUENCE, 

wliat 688 

USAGE,  {See  Clstom  and  Usage.) 

USE   AND   OCCUPATION, 

defence  to  action  for ,     135 


V. 


VARIANCE     . 


11,  12,  13,  160,  189,  625 


W. 


what  is,  and  how  punishable         .... 

.     650 

damages  in       ......         . 

650 

action  of     .         . 

.      651,  652 

pleas  in          ...... 

653 

action  on  the  case  for,  by  landlord 

.     654 

proofs  in 

654 

must  be  specially  stated  and  proved 

.     655 

general  issue  in,  evidence  under        .         .         .         . 

6.36 

by  plaintiff  . 

.     656 

by  defendant     . 

656 

WAY, 

private,  how  it  may  exist     ..... 

.     657 

by  necessity         , 

658 

appurtenant    , 

659  a 

how  proved         ...... 

659 

when  lost  by  non-user     .... 

.     660,  665 

proofs  by  defendant,  in  action  for  disturbance  of 

660 

in  trespass    .... 

.     601 

public,  how  proved           .                  .         .         .         , 

662 

636 


INDEX. 


WAY  —  Continued. 

public,  proved  by  dedication         .... 

by  whom  made 
liow  rebutted 
not  lost  by  non-user      .... 

WILLS, 

diversities  in  modes  of  proof  of         .         .         • 
by  what  law  governed  ...... 

as  to  movables 
as  to  immovables 
by  what  law  interpreted  .... 

probate,  effect  of  ...... 

when  conclusive  .... 

mode  of  proof  of    . 
signature  of,  by  testator,  what  is  sutRcicnt  . 
publication  of,  what  is,  and  when  necessary  . 
witnesses  need  not  see  testator  actually  sign 

how  many  necessary      .... 

must  sign  in  testator's  presence 
presence  of  testator,  what  is  ...         . 

thirty  years  old,  need  not  be  proved 

revocation  of,  what  is  .         .         .         .         . 

express,  by  subsequent  will  . 

by  deed  of  revocation  . 
by  cancellation         .    ■ 
by  cancellation  of  duplicate 
when  avoided  by  destroying 

ment  of  revocation 
must   be   by  testator   while 
mind 
implied,  on  wliat  principle 

by  marriage  and  issue 
by  alteration  of  estate 
by  void  conveyance 
revival  of       ......         . 

how  avoided        ...... 

obtained  by  undue  influence,  when    . 

what  is  undue  influence         .... 

insanity  of  testator,  burden  of  proving 

at  time  of  executing  the  will 

what  is  evidence  of 

prove  1  by  admissions,  when 


Bectioji 

.  662 
663 

.  661 
665 

666 

.     668 

668,  669 

.     670 

c:  1 

.     672 

672 

33'J,  340, 313,  n. 

67-1 
.     67.'» 

676 
.     677 

67  H 
.     678 

679 
.     680 

681 
.     681 

681 
.     682 


the  instru- 


683 


of 


sound 


681,  n. 

684 
684,  685 

686 
.     687 

683 
.     688 

688 
688,  n.  1 

689 
.     690 

690 
.     690 


OT)   or    Vol    II 


^^^|J 


IXDEX.  037 

8ICTIU8 

\\  ILLS  —  Continued. 

declanition«  of  devUeen  in  d'upwrngoiuenl  of      .  CDO 

attesting  wimcjiM:*,  why  rfqiiirfd            ....  COl 

liiu^t  be  ••onuH.'tfiit        .  •          •^'•'1 

may  lesiify  a*  to  belief    .  .GUI 

proof  of,  in  c«»urt<*  of  coiummi  law      ....  .  G92,  0U3 

when  l«J«.l GhHa 

itiU'r  iMoe  of  dfpitavit  rel  nun  BUS,  G'J4 
W  K 1  1 M  1  N    I N S  r R r .M K NTS, 

j.;   .  Iticliun  of        .  .  .  ■  ■  .11 

varianct)  ill  proof  <>■  ...  .11 

,  •  12.13 

i  u.  i:* 

proof  of,  when  it  niay  be  called  for !•» 

lOM  of,  how  prowl ^  ^ 


12 


XmiVER^  OF  CALTFOm^ 


y  f  ACILITY 


AA    000  760  525 


A*v.. 


•  •  ■   w.    .:  0t^. 


